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Making a Will in the time of Coronavirus – guidance on the implications of the rules on social distancing and isolation for work on Wills issued today

BY Ravi Merhas – Head of Private Client Services

We are receiving unprecedented queries regarding Wills from clients during this difficult COVID-19 Coronavirus pandemic. It was notified to the Daily Telegraph that levels of requests are up 30 per cent.

Wills is an area of law is one which relies on face-to-face meetings between legal advisors and their clients, such as in needing the physical presence of the Will-maker and two witnesses to put the document in place at the end of the process. The current climate has seen a sharp increase in those wanting to ensure that their affairs are in order, but some clients who have requested our help are elderly, vulnerable or self-isolating.

So, how do you put a Will in place but ensure that you are not at risk in doing so? With social isolation and distancing measures, how can we help clients prepare and execute their Wills without direct face to face contact?

According to our governing body and guidance issued today, under the Wills Act 1837, it is not permitted to witness a will via video messaging as a witness must be physically present, however it is possible to supervise the signing of a will using electronic means where the solicitor is not acting as a witness to the will.

The following addresses the further guidance issued, however it may be subject to change following further review and assessment.

What if the health risks around seeing a client who wants to make a will mean we can’t meet them . Can we still act for them?

Where it is not possible to meet our client or anyone acting on their behalf, for example because of the government’s guidance on social distancing, we can consider using electronic means to take instructions from our client – for example by video link, phone or email. We will ensure that whatever means we use enable us to meet key requirements, namely that we must be able to identify our client and reassure ourselves that they are not subject to undue influence, and that they have capacity to give instructions. This, however, can present difficulties where the practitioner needs to assess and record mental capacity. It is also likely to be problematic to obtain a doctor’s report confirming capacity at the moment, given the pressures on the National Health Service.

As discussed above, there is also the suggestion that when the current crisis has passed, the solicitor should arrange to see the client again to confirm the instructions, arrange a capacity assessment if needed, and resign the will.

When we cannot witness a will in the client’s presence?

Many firms attend to clients and witness the will in the client’s presence. Where this is not possible we will discuss and consider other options. For instance: does the client have neighbours that could execute at a distance, through a window for instance. Also, can our firm send documents to the client with instructions on how to correctly execute the Will?

What flexibility do solicitors have around the execution of wills?

We are duty bound to ensure we act in line with our principles and that we are at all times acting in the best interests of our client. The risk to the client and their beneficiaries of an invalid will are obvious and significant, as an incorrectly prepared or executed will could have severe consequences for beneficiaries if the will cannot be recognised as valid.

The current circumstances with the COVID-19 coronavirus pandemic may require solicitors to make some difficult and novel judgments. For instance, if we are supervising the execution of a will by someone in a care home, we will be unable to attend physically to supervise so will need to issue clear instructions on how the will can be properly executed by the testator and for example care workers as witnesses.

It may be possible to supervise the process electronically.eg through video or other virtual means. If we are making such judgment calls, we are expected to keep appropriate records of our decisions and how we ensured we were complying with our governing Principles. These could be by making full and prompt files notes, by recording in a video the advice given and the circumstances surrounding the testator’s signature and so on.

It has been suggested to Solicitors to ask clients to video record the signing of the will if possible and keep good file notes on how instructions came in and how the will was signed. We may also want to think about discussing re-signing the will with clients once social distancing requirements are lifted, where this is appropriate.

Attestation by two witnesses present at the same time, while maintaining personal separation, is a particular difficulty, especially if the testator is in isolation and unable to ask independent witnesses into the room. However, witnessing a will from the next room or through a window might be challenged as not being formally in the testator’s presence, although some very old case law (Casson v Dade 1781) suggest it may be sufficient to have two witnesses who are in line of sight though not in the same room.

How Barnes Harrild & Dyer Solicitors can help

We’re committed to doing whatever we can to help you in this tricky time and to give you peace of mind. Our solution to this dilemma has been to take instructions from you over the ‘phone or by skype and, then, to act as your witnesses or advise you of the witnessing of your Will. If you are concerned to get your affairs in order in a Will but are unable or are worried about leaving your home, please contact us. We would be delighted to help.

Barnes Harrild & Dyer Solicitors will be monitoring the situation closely and providing updated guidance in due course. We have many existing and new clients concerned about making ther wills at this difficult time. You can contact me directly at ravi.merhas@bhdsolicitors.co.uk to arrange a consultation, or you can contact us via the blue contact us boxes above. Barnes Harrild & Dyer are specialist Wills, Probate and Estate Planning solicitors.

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