Making a Will during COVID-19
01 April 2020
The COVID-19 pandemic has, unsurprisingly, caused many people to stop and think about whether they have a valid, up to date Will in place.
The Private Client team has already received a number of estate planning enquiries from existing and new clients. Like the rest of the firm, the team remains very much open for business and available to assist clients with any queries or concerns they may have, particularly with regards to creating or updating their Wills.
The current “lockdown” situation throws up a number of new challenges in the context of drafting and executing Wills, but the team is working on innovative solutions to address these challenges.
1. How do I get advice and instruct my solicitor if we are not able to have a face to face meeting?
When taking instructions it is vitally important that the solicitor is satisfied as to the mental capacity of the client making the Will, and is also content that there is no suggestion of undue influence upon the client, for example from a family member. It is difficult to make a judgment on these issues without a face to face meeting.
It will not be possible to arrange face to face meetings or home visits with clients until restrictions on movement have been relaxed, but our team can facilitate a video call via Skype to “meet” with the client, provide advice and take instructions.
2. How do I make sure that I am happy with my new Will before signing?
Once our team member has taken instructions, a draft Will shall be prepared and emailed to the client for approval. The email will provide a commentary on the individual clauses to ensure that the client fully understands the meaning and implications of the Will. The email can also be followed up with a phone call to discuss any particular issues or queries.
Once the client is satisfied with the Will, a pdf version can be emailed for printing at home, together with detailed instructions for execution.
3. How do I sign my Will?
This is one of the most significant challenges facing practitioners in the context of social distancing and self-isolation. There are very strict statutory requirements in relation to the execution of Wills, and these requirements have not changed during the current crisis. That said, professional organisations, such as the Law Society for England & Wales, Solicitors for the Elderly and STEP, are asking the government for temporary legislative measures to help deal with the current issues surrounding Wills and our team will be keeping a close eye on any developments during the coming weeks.
Wills must be signed in the presence of two independent witnesses, present at the same time, who must also sign. Witnesses cannot be a beneficiary under the Will, or even the spouse of a beneficiary, otherwise the gift to that person is invalidated. Guidance from various professional bodies suggests that in the context of COVID-19, it would be sufficient for a person to sign their Will at a window in plain sight of two independent witnesses. The document could then be passed through the window or a letterbox to enable each of the witnesses to sign their own names. It is important that the witnesses have a clear line of sight to see the document being signed.
The team can also be available on Skype to oversee the execution of the Wills and minimise the risk of a mistake occurring.
4. Can I execute my Will electronically?
No, a Will must be signed manually in line with the statutory formalities outlined above; you cannot use an electronic signature.
Also, whilst some have suggested that it may be possible to witness a Will via Skype, with the Will later being sent to the witness for their handwritten signature, the team does not consider that this would constitute valid execution of a Will. Such execution was recently held not to be valid in relation to a transfer deed. Whilst a transfer deed and a Will are two very different documents, we think it is inappropriate to adopt these practices without further statutory authority.
5. Are there any other issues to be aware of?
A Will must be executed as one continuous document. If it extends to more than one page, it cannot be stapled or paper-clipped; it must be appropriately bound. Otherwise it could be rejected by the Probate Office when it comes to be proven following the testator’s death. Therefore, our team is recommending that clients for the time being keep their Wills as simple and succinct as possible. The client may even just wish to implement a fairly straightforward Will as an interim measure, and revisit the Will once restrictions on movement are relaxed. The team will attempt to restrict the drafting to one or two sides of A4 where possible, so that the document can be printed at home by the client as one (double sided) page.
6. What do I do with my Will once I have signed it?
The client should keep the Will in a safe place for the time being and email a scanned copy of the signed version to the team to check and file. The original document can then be returned to the team once restrictions have been lifted, or indeed, it may be prudent, depending on the circumstances, to re-sign the Will at our office at that time.
If you have any queries about making a Will, or wish to discuss an existing Will with one of our team, please contact Neil Bleakley.