In light of the widening impact and spread of Covid-19, individuals are anxious about their loved ones and dependants. In the context of estate planning, ensuring that their Will is up to date is at the forefront of many people's minds. This week, the chair of the Law Society's Wills and Equity committee noted that requests for Wills are up by an estimated 30 percent.
However, self-isolation, social distancing and quarantines pose novel challenges to effectively complying with certain formalities for the preparation of and execution of Wills.
Here we examine some of the issues arising and how these can be addressed:
Preparation of your Will
As face to face meetings are impossible, technology offers a partial solution as meetings to discuss Wills and take instructions can be facilitated via calls, videoconferencing and emails.
Advisors do however have an obligation to ensure that the testator is of sound mind and there is no pressure from another person in relation to the Will being made or the terms of it. The Solicitors Regulation Authority has confirmed this week that legal practitioners may be able to speak with clients via telephone or videoconferencing to ensure that there is no undue influence and that capacity requirements are met.
Difficulties can arise where issues of mental capacity surrounding the Will need to be assessed and recorded by the advisor. Where medical assessments are required, some private medical practices are offering doctor's reports conducted via video conferencing to assist with such cases.
Signing your Will - how can the requirements relating to witnessing be met?
The formalities for execution of an English Will must be complied with to ensure that the Will is valid and can be upheld.
Section 9 of the Wills Act 1837 governs this process. For an English Will to be valid, it must:
- Be made by a testator who is at least 18 years of age
- Be voluntarily made and without pressure from another person
- Be made by a testator of sound mind
- Be in writing
- Be signed by the testator in the presence of two witnesses
- Also be signed by the two independent witnesses, in the presence of the testator (and in the presence of each other), after the testator has signed
- Suggest that the testator intended by their signature to give effect to the Will
The Society of Trust and Estate Practitioners has this week indicated that witnessing a Will from another room or through a window could be risky, and may cause the Will to be challenged as the witnesses are not in the testator's presence.
Our recommendation is therefore that, if possible, you should arrange for witnesses to visit you and maintain as much distance as possible while still complying with formality requirements. This includes not sharing pens, and given that there are some suggestions that the virus could survive on paper for 24 hours, thorough handwashing and hand-sanitisation before, during and after the process is imperative.
Other legal documents have more flexibility in terms of signatures and witnessing requirements but this does not extend to Wills. It is important that professional guidance is taken when putting a Will in place, particularly in the current climate to avoid the risk of errors that can lead to uncertainty and disputes later on.
There is no official confirmation from the UK Government that e-signatures or video-witnessing can be used to meet the formality requirements, however this week the Law Society confirmed that it is currently in discussions with the Solicitors Regulation Authority and Ministry of Justice regarding changes to the current rules given the barriers they create in the current climate.
We are here to help with any questions you may have on preparing or updating Wills. For more information, please get in touch with one of our key contacts listed on the side.