How to make a Will while social distancing

According to financial advisory organisation deVere Group, Will enquiries surged by 76% in the first few weeks of coronavirus lockdown[1]. Meanwhile, the Office of Public Guardian, which deals with the registration of Lasting Powers of Attorney (LPAs), is also struggling with high demand. As the country grapples with the COVID-19 pandemic, many people have become aware of the need to either make a Will or register an LPA as their uncertainty about the future grows.

However, lockdown is not making the task easy. Elderly or vulnerable members of the population who have been advised to ‘shield’ (i.e. remain at home for at least 12 weeks) are finding certain legal requirements particularly tricky in the current climate. This article discusses some of the difficulties that legal practitioners and their clients are currently experiencing, and the solutions that have so far been found to surmount them.

Drafting the Will

The Society of Trust and Estate Practitioners (STEP) has advised that you should not delay the drafting of your Will. Instead, it has recommended that clients be given the option of meeting their solicitor via telephone call or video conference. At Attwaters Jameson Hill, we can hold a virtual meeting with you via whichever communication method best suits you.

However, for a Will or LPA to be valid, the person making it must have the mental capacity to do so. It may be difficult for a solicitor to assess a client’s mental capacity from afar – although it may be possible to achieve this via a WhatsApp or Skype call.

If the solicitor is in doubt as to the client’s capacity, however, it could be difficult to then obtain a doctor’s report confirming capacity, given the current pressures on the NHS.

Witnessing the Will

This legal requirement is presenting significant difficulties in lockdown. The law currently stipulates that the signing of a Will must be witnessed by two people both present at the same time, which may be difficult if the person making the Will (the testator) is in isolation. Currently, witnessing a Will via e-signature or video link is not permitted, as it doesn’t strictly satisfy the requirement to be in the presence ofthe testator. In the absence of an actual change in the law, the Solicitors Regulation Authority (SRA) and the Law Society may issue updated guidance on this issue.

Witnessing while social distancing

So, having a Will witnessed at the moment does have its challenges – but it’s by no means impossible. It seems eminently sensible, for instance, for a Will to be signed at the direction of the client by one of the witnesses, with the other witness also able to see the client via video link. Remember that attestation clauses should be amended accordingly where a Will is signed at the direction of the client by one of the witnesses.

Other solutions reported so far include the testator signing the Will on one side of a window, before passing the document to witnesses on the other side, or witnesses standing at opposite ends of a drive or garden to watch the testator sign, and then coming to collect the document once the testator has withdrawn to a safe distance.

Working for you

We understand that many of our clients are concerned about the current situation and are eager to record their wishes as soon as possible. We are working extremely hard to respond to our clients’ Will and LPA requests while observing social distancing practices, tailoring our solutions to their individual circumstances. For clear legal advice, please call our Wills & Probate team on 0330 221 8855 or email wills@attwaters.co.uk.

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[1] https://www.thegazette.co.uk/wills-and-probate/content/103539