Since the start of the COVID-19 lockdown we have been contacted by many clients wanting to ensure they have Wills in place or to update existing Wills and letters of wishes. This has no doubt been prompted partly by the natural and dominant fear of serious illness, but also many clients find they have the time just now to think about what they would like to happen in the event of their death.
For many clients making a Will in normal circumstances is a task that is easily put off as something they would prefer not to think about. In the past few weeks, we have seen a significant increase in clients seeking our bespoke and expert service for legal advice on wills. For now, taking instructions is almost exclusively carried out on video conference calls on one of the many apps and services available. The Law Society has endorsed such use of technology in taking instructions from clients.
However for some older or vulnerable clients this technology is not necessarily available or helpful and they require a different approach. Many families have bought their vulnerable relatives tablets or smartphones, enabling contact to be surprisingly easy. However, some clients do not have such support and we are communicating with them either via telephone or requesting them to write to us if they can get to a postbox or have a neighbour who can post a letter for them. For a simple change to an existing Will in an emergency we could even provide wording for a Codicil over the telephone or by email to be written out in manuscript and duly executed.
We have come across concerns in these challenging times that executors appointed under existing wills might predecease the testator. A short codicil appointing substitute executors could be a solution. This could be done on a temporary basis if desired and a further layer of certainty could be achieved by appointing a trust corporation rather than individuals as substitute executors.
Whatever the Will is to say, however, it is of no consequence unless it is valid, and that means making sure it is executed according to the law. The signing of a Will has become a real challenge for us all. With the entire nation being required to be socially distant by 2m from one another and a high number of people self-isolated because of their medical situation or their job or volunteer work providing essential services during the crisis, there are some real practical challenges here.
We are considering and recommending various measures to assist to ensure validity under the current legislation. A Will has to be witnessed by two people present at the same time who are not beneficiaries of the Will (so not family usually) and not the spouse or civil partner of a beneficiary. The Ministry of Justice is considering temporary relaxation of the two witness rule but that has not been confirmed. Further it is a requirement that both witnesses be in the presence of the person making the Will (the testator) during the signing process. The Will cannot be signed ‘electronically’ or in a virtual way – pen and ink plus physical presence are necessary elements to its validity. Signing by someone else at the direction of the testator is possible and can be helpful in some cases. There are challenging technical issues here, which we are considering on a daily basis given the circumstances of the current crisis.
Successfully signing a Will whilst achieving social distancing can be achieved by taking the required steps out of doors (on a fair day!), in separate rooms (as long as there is a line of sight) or through a window, and often with the assistance of neighbours as witnesses. The recommended hygiene precautions (hand washing, gloves, separate pens, maintaining 2m distance etc) can and should be followed. It may be advisable to have a solicitor on a live video link who can observe and instruct the testator and witnesses as they each do their part, so again using technology to our advantage. A note of the procedure followed should be carefully taken (routine in a normal client meeting) and kept in case any question is subsequently raised as to whether the Will was validly executed.
We always encourage our clients whatever their circumstances to have a Will and letter of wishes in place as an essential way to express their wishes and sometimes their deeply held beliefs and feelings in the event of their death. In these difficult times, that message has never been more important and we are here to help our clients however we can.
We have previously published a series of other articles relating to Estate Planning which may also be of interest to you (Why make a will, Probate steps in the administration of an estate, and The importance of lasting powers of attorney).
We wish you well and keep safe during these exceptional times.
This publication is a general summary of the law in England and Wales. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, April 2020