Will preparation in a time of Covid-19
The Daily Telegraph recently reported that the instructions for Wills and LPAs was up 30% due to the pandemic. Many practitioners have been grappling with the best way to help these new clients achieve a valid Will and LPA without violating the self-isolation rules.
Fortunately, the Law Society has agreed with the Ministry of Justice that solicitors dealing with the execution of Wills are key workers – see https://www.lawsociety.org.uk/support-services/advice/articles/coronavirus-covid-19-advice-and-updates/
The above guidance also deals with the practical problem of trying to deal with emergency Wills. In each case consider the safeguarding guidance from government and the requirements of the hospital or hospice. If you cannot safely conduct the preparation and execution of the Will at the hospital or hospice without endangering the client and your staff then it is appropriate to decline to act. Record your decision and your reasons for it on your file. If the firm has a policy about such matters it would be wise to include this on your website.
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Many firms are embracing the use of technology to help take instructions. Some clients can be easily interviewed over Skype, Facetime, Team meetings, Webex or Zoom or other video calling means. The advantage of these tools over the telephone is that you have visual contact with the client which can aid your determination of their capacity, their understanding of the discussion and whether there is evidence of undue influence. Tim Farmer has produced an excellent set of guidance for virtual assessments which apply equally well here – https://tsfconsultants.co.uk/guidance-for-virtual-assessments
It is also possible to record these interviews, with your client’s permission, which could be useful at a later date.
Having taken the instructions, you can prepare the Will in the usual way. It will be useful to send a draft to the client and discuss carefully the clauses so that their knowledge and approval of it can be confirmed – preferably in writing by e-mail. As part of this communication you will need to decide how to deal with the execution of the Will.
For a few not in self-isolation, then you will presumably deal with the arrangements in the usual way. This may involve sending the document through the post for them to arrange execution. In which case, you must provide clear directions as to the need to comply with s.9 Wills Act 1837.
Many clients will be in self-isolation simply because of their age. In which case sending the document through the post for them to arrange execution is pointless. It will be useful to have received approval to the draft as it may be necessary to rely on your assessment of capacity at that point as the basis for the execution of the Will later when it may not be possible to ascertain capacity and you might have to rely on the case of Parker v Felgate (1883) LR 8PD 171. This case recognised a Will as validly executed where the testatrix had given settled instructions in respect of the Will to her solicitor at a time when she had testamentary capacity and the testatrix had executed the Will knowing or believing (as was the case) that the Will reflected those earlier instructions.
Where you agree with the testator that execution of the Will is to be performed at their home whilst in self-isolation there comes the issue of how to comply with s.9 Wills Act 1837. Social distancing and self-isolation means that the clients must not let you in the property. You can post the Will through the letter box or leave it at the entrance for them to pick up and take inside once you have stepped aside but to witness their signature of the Will you and another witness must be ‘present’.
The obvious thing is to stand either side of a window and witness the testator signing the Will. Then collecting the document, the same way as you delivered it, signing it as witnesses on the other side of the window whilst the testator watches. Is this ‘presence’? An old case has been highlighted as authority for the principle that it can be – Casson v Dade (1781).
An alternative option is to agree with the client that you will act as their signatory if they direct you to sign on their behalf. You will need to alter the attestation clause to reflect this and for safety’s sake take two witnesses with you rather than acting as a witness as well as a signatory (although strictly you can do this).
s.9 Wills Act 1837 says:
No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)it appears that the testator intended by his signature to give effect to the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)each witness either—
(i)attests and signs the will; or
(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary
So, you would still have to sign on behalf of the testator in his presence and at his direction, but this could all be done outside the window.
The Law Society and the Ministry of Justice are discussing ways to make execution of Wills simpler for the current crisis. The Law Commission report on Making a Will is on the back burner whilst other more urgent matters were dealt with and they had been considering the law in other jurisdictions. For example, should we adopt the Australian approach which leaves the decision of whether there was a testamentary document to the Judge; or perhaps the European approach of holograph Wills which are valid if written in the testator’s handwriting and signed with no witnesses. There is also the modern consideration as to whether it is possible to use electronic signatures.
For now, s.9 still applies but it is possible to work within it if you use some imagination, new technology and record everything in detail.
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