Making a will in the time of coronavirus
Practitioners have to be mindful of official advice on self-isolation and social distancing, which are particularly important for elderly or ill persons. Moreover, there are reports of a large jump in the number of people contacting lawyers to draft wills and execute powers of attorney in the last month. Ian Bond TEP, chair of the Law Society's wills and equity committee, stated to the Daily Telegraph that levels of requests are up 30 per cent.
Delaying drafting the will is clearly a risky option for testators who are already ill. Clients should thus be given the option of meeting via telephone or videoconferencing in order to draft the will, said a STEP recommendation issued last week.
This, however, can present difficulties where the practitioner needs to assess and record mental capacity. It is also likely to be problematic to obtain a doctor's report confirming capacity at the moment, given the pressures on the National Health Service.
Some solicitors are adopting the practice of signing off at the direction of a testator after going through the document with them through a window. But some advice suggests that the virus could survive on paper for up to 12 hours, so that it could be transferred from person to person just by handling the draft will.
Attestation by two witnesses present at the same time, while maintaining personal separation, is a particular difficulty, especially if the testator is in isolation and unable to ask independent witnesses into the room. However, witnessing a will from the next room or through a window might be challenged as not being formally in the testator's presence, although some very old case law (Casson v Dade 1781) suggest it may be sufficient to have two witnesses who are in line of sight though not in the same room.
'Practitioners are in a difficult position as it may not be possible to comply with the government's guidance to reduce social contact while also arranging for wills to be validly signed', says STEP. Its recommendation is that the government's guidance should be every practitioner's starting point. 'In practice this may mean sending wills to clients and asking them to make arrangements for suitable witnesses to visit them while maintaining distance so far as possible. However, it will be for each practitioner to make a decision on the merits of the particular case and the relative risks to both the client and the practitioner.'
A partial solution may lie in technologies such as Skype, WhatsApp, Facetime or email, although there is not yet any official confirmation that e-signatures or video-witnessing will be accepted by the authorities. The government recently officially accepted the Law Commission's opinion that electronic signatures on contracts and many deeds are already legally valid in England and Wales without the need for formal primary legislation, but wills remain an exception to this.
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