Writing and Witnessing a Will during the Coronavirus Pandemic
by Laxmi Mall
The demand for wills and lasting powers of attorney (LPAs) have soared due to the threat of Coronavirus (COVID-19). This is understandable as making a will is the only way to ensure that one’s money, possessions and property are dealt with according to their wishes after their unfortunate passing. This article delves into the procedural challenges that legal practitioners are currently facing when preparing and executing wills in the midst of this crisis.
The Law Society and the Ministry of Justice are seeking to establish methods to ‘deformalise the signing of wills and to make it quicker to register for LPAs’ There is a possibility that an Australian-style approach could be adopted when deciding what constitutes a valid will, and there is a possibility that wills could be witnessed electronically. In the midst of this uncertainty and the possibility of reforms to the current wills procedure, Lennons Solicitors’ experienced and knowledgeable Wills, Probate & Life Planning Team have introduced their own solutions during this lockdown period of social distancing.
Issue: Ensuring that the will is legally valid
In order for a will to be valid, it must be witnessed by 2 independent adults (over the age of 18) and these witnesses cannot be potential beneficiaries of the will, spouses of the beneficiaries or the testator’s family members. Camilla Haggith-Khonje, the head of our Wills, Probate & Life Planning Team has agreed on adopting a ‘through the window’ technique in order to witness a client’s signature.
Our Solution: Witnessing a will – Through the window technique
This technique involves witnessing the client’s signature through the window of their home – as it would still mean the witnesses would be socially distancing. Since solicitors and other legal staff are considered to be key workers, it would not be a breach of the current rules for a solicitor to visit their client’s home and personally witness their client signing their will through their window. As there is potential risk to the team, the priority would be to ask the client if they have two neighbours (non-beneficiaries) who would be willing to act as a witness or certificate provider instead. We would advise that the neighbouring witnesses wear surgical disposable gloves in order to do so.
However, there are shortcomings to this solution as witnessing through the window ‘might be challenged as not being formally in the testator’s presence’. Jenny Russell, our Compliance Director, has raised this issue and thus indicated that the client must be made aware of this shortcoming of the through the window technique. Regardless of this shortcoming, Jenny has stated that it may have to be an option during this crisis, and the will can be re-signed and re-executed as normal when social distancing is no longer in place in order to ensure further validity of the will.
Our Solution: LPAs – Assessing Client’s Mental Capacity over a Video Call
A lasting power of attorney (LPA) is a legal document that enables the client to appoint one or more people (attorneys) to help them make decisions on their behalf. In order to make a valid LPA, the client must be 18 or over and have mental capacity. Legal practitioners are currently tackling the issue of assessing their client’s mental capacity when making LPAs, as they are not able to conduct face-to-face meetings as normal due to social distancing measures.
Camilla has agreed that having a video call with the client may be the best technique to assess a client’s mental capacity during this crisis and lockdown. During the video call with the client, our solicitor would ensure there is nobody else present in the room by requesting their client to show that the client is the only person in the room. Our solicitor will ask their client to sit with their back to the door so that the solicitor will be able to immediately notice in case someone does enter the room during the video meeting. By doing so, the solicitor would be able to ascertain that their client is under no duress to make an LPA and that our client does indeed have capacity.
In general, the starting point is that the client does possess capacity but if the solicitor is unsure or not convinced of their client’s capacity for any reason, we will be able to proceed with the usual process of receiving a doctor’s note or a Court of Protection.
As e-LPAs (electronic LPAs) are not being accepted by the Office of the Public Guardian, we (solicitors) are unable to witness the signatures on the LPAs and we are unable to be certificate providers. Therefore, our clients will need to sign in front of someone who has known them for 2 years or more.
The priority for our Wills, Probate & Life Planning Team is to ensure that all of our clients have a valid will and LPA regardless of the current lockdown and that we get the documents signed to the best of our ability, rather than leaving our clients without a will and LPA – when there could be a risk they need them.
Lennons Solicitors have a well-established Wills, Probate and Life Planning department. Camilla Haggith-Khonje is the head of our Wills, Probate & Life Planning department. If you need assistance with writing and executing a will, talk to one of our experts today on 01494 773377 or email [email protected]
Please note that this article is not intended to be legal advice and it is only an opinion.
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