Scottish lawyers advised on will-making under social isolation regime
The coronavirus epidemic has made it problematic for the client's instructions to be taken face to face, or for the will to be executed in the presence of an appropriate witness. So the society is now suggesting that instructions can be taken over a videoconference call.
However, the issue of identity checks, assessments of capacity and checks for undue influence pose more difficult problems. 'It is not possible to take instructions solely over the telephone and then send a document to a client for signing', says the society. 'Despite the very real, practical difficulties that the profession face in the current climate we are unable to waive the requirement for these checks to be carried out.'
The guidance suggests that a will can also be witnessed by the solicitor using video technology, with suitable protections. The solicitor should witness the client signing each page, or have someone else on the video call do so. The solicitor may then be able to assess the capacity of the client and check whether any undue influence is being exerted by a third party. The client should then post the paper back to the solicitor witness, who should sign it as soon as it reaches them. The videoconference recording should be kept in case the will is later challenged.
'We consider that the witness, as long as they have seen the client actually sign each page, can on receipt of the signed will, legitimately sign and complete the signing details on receipt of the signed will', says the society's guidance. 'We would anticipate that this would be deemed to form one continuous process as required by the legislation. The key point is that client will have signed a fully valid will.'
Even if a video link cannot be set up, and witnesses cannot be physically present, the society says that the client can be told that their signature alone at the end of the will is effective to make a valid will under Scottish law, although not self-proving. It would then have to be proved during the confirmation process as having been signed by the client by affidavit evidence as to their signature.
In the meantime, professional organisations in England and Wales, including the Law Society, Solicitors for the Elderly and STEP, are asking for temporary legislative measures to help them deal with the current problems, both on wills and other instruments such as lasting powers of attorney. These involve reducing the number of witnesses and looking at other solutions such as video witnessing. Solicitors for the Elderly has issued some helpful suggestions, though it does not claim to be best practice guidance. The Solicitors Regulation Authority has also published some guidance, though it provides little in the way of detail. There are hopes that government will take action imminently. Until a decision is made, if people sign wills without witnesses, or using videoconferencing or any other variations, then they risk the will being invalid or ineffective.
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