Antony Caulfield, Private Client Partner, discusses Wills and the impact of social distancing during the current Covid-19 crisis.
Social distancing is creating a plethora of problems for lawyers and their clients in all areas, but few of those are as pressing as the issues relating to the preparation and execution of Wills. The Law Commission concluded some years ago that the rather archaic laws relating to Wills should not be significantly changed for now, and this has set the scene for difficult times during the pandemic.
It is important to note as a starting point that as at the date of publication of this briefing note the law in relation to Wills in England and Wales remains as it was before the coronavirus pandemic was formally declared. While both the Solicitors Regulation Authority (SRA) and the Society of Trust and Estate Practitioners (STEP) have given some limited guidance – referred to below – at present the law has not changed.
Wills – A Brief Outline
In order to make a valid Will the following requirements must be satisfied:
- The Will must be in writing (subject to some very limited exceptions);
- You must have the mental capacity to make a Will;
- You must intend to make that particular Will;
- You must not be subject to undue influence;
- The Will must be validly executed (signed and witnessed).
It is important to note that each of the above limbs has created an abundance of case law (court decisions) which makes navigating the terrain of Will-making quite treacherous. A Will can be challenged on any of the above grounds (and more) after death, meaning it is of the utmost importance that the correct steps are taken to ensure the requirements are satisfied. This is why lawyers are very careful to ensure the requirements are met when preparing your Will, and also why the government’s social distancing measures are creating significant practical difficulties for the creation of valid Wills.
In ordinary circumstances a lawyer would assess your mental capacity, intention and whether you are subject to undue influence in a face-to-face meeting with a detailed discussion of your affairs. The courts have held that this is one of the most reliable ways to ensure the requirements for a valid Will are met and the courts give considerable weight to the assessments of experienced legal practitioners at the time the Will is made. This is one reason why we would not recommend that someone makes their own Will, as it is all too easy to fall foul of one or more of the legal requirements. A detailed contemporaneous assessment of your capacity, intention and ascertaining the reasons behind your wishes, as set out in the Will, by a lawyer at the time the Will is made, is absolutely crucial, and your lawyer should keep a file with detailed attendance notes explaining why, in their view, the requirements have been satisfied. That file often proves invaluable to the courts when Wills are challenged, which is becoming increasingly common. It is also why home-made Wills are far more easily challenged in the courts.
Additionally, lawyers who prepare Wills are obliged to ensure that they are validly executed and they would normally do this by, either being present at the signing and acting as one of the witnesses (two are required – see below), or by giving clear instructions in writing to the person making the Will as to how it should be executed. The execution requirements are extremely precise and it is imperative that they are followed to the letter.
It is therefore not difficult to see how strict social distancing measures are creating real difficulties for both lawyers and their clients in ensuring valid Wills are made. Face-to-face assessments of capacity, intention and undue influence are proving extremely difficult, along with the lawyers and others being present with the client upon execution of the Will. It is important to note that no lawyer can give a cast-iron guarantee that your Will would be found to be valid by a court if it was challenged after your death, but using a lawyer is one of the safest ways to ensure that the likelihood of a challenge succeeding is reduced. You should not therefore be deterred from using a lawyer to make your Will during the coronavirus pandemic, in spite of the logistical difficulties it presents, as you will expose yourself to the risk that it is later challenged and potentially found to be invalid.
The Initial Assessment
The SRA and STEP have confirmed that the lawyer’s initial assessment – which includes taking the client’s instructions and assessing their capacity, intention and influences – can be done by electronic means, which is helpful. It is certainly not ideal, however, as the importance of face-to-face interaction when determining a person’s mental state cannot be overstated. It is not difficult to imagine the barrage of incriminating questions that a barrister, or judge, may have for a solicitor who assessed a client’s capacity by reference only to the emails they sent, if court proceedings were to ensue. In these difficult times we are looking to overcome some of these difficulties, where possible, by the use of technology and video calling, so that in appropriate cases we are still able to carry out the initial assessment and interact with the client face to face.
Sometimes, a lawyer will recommend that a doctor is involved in the process to confirm that a person has the mental capacity to make a Will. Often this is a formality for higher risk clients, i.e. clients who are statistically more likely to lack capacity, for example the elderly and infirm or those with certain mental health conditions, and not because the lawyer actually suspects that someone may lack capacity. The primary purpose is often the avoidance of doubt in case the Will is challenged in order to protect the client’s Will and ensure their wishes are carried out. With the NHS stretched with Covid-19 patients and GPs being pulled from their practices to assist with the crisis, this is becoming increasingly difficult to arrange. We are however still able to arrange for a medical expert to undertake a capacity assessment, in appropriate cases, with the use of video calling.
It is also important to note that “testamentary capacity”, as it is technically referred to, is a legal test and is not simply the presence or absence of, say, dementia or a debilitating mental health disorder. A doctor’s report is therefore not definitive and it is more important than ever before for people to ensure that lawyers are involved in the making of their Wills.
The law relating to the valid execution of Wills is very old (the Wills Act 1837) and hundreds of cases since then have built upon and, in some cases, augmented it. Social distancing is creating problems not only for lawyers who would normally oversee the execution of Wills and act as one of the witnesses, but also clients who are executing Wills themselves at home with their lawyer’s advice.
In order for a Will to be validly executed the following must take place:
- The testator must sign the Will in the presence of two witnesses;
- Both witnesses must be present at the same time when the testator signs the Will;
- Both witnesses must then sign the Will below the testator’s signature.
The testator should sign at the bottom of the Will to avoid any doubt that part of the Will was not intended to be included, but whilst highly advisable this is not an absolute legal requirement. The witnesses should also sign below the testator’s signature to avoid any doubt that they signed before the testator, but again whilst highly advisable, this is not an absolute legal requirement. We recommend that witnesses put their contact details below their signatures in case they are ever called upon to give evidence of the execution.
It is possible for someone else to sign on behalf of the testator, if they are unable to do so but we would not recommend this without taking specialist advice. It is also possible for the testator to sign the Will in advance of the witnesses being present provided that the testator acknowledges his signature, i.e. points to his signature confirming that it is his, with both witnesses being present and they acknowledge that it is his signature and then sign themselves as witnesses, but again this should be avoided wherever possible and we would not recommend this, as it leaves too much room for doubt.
In terms of who can be a witness the following should be noted:
- They must not be blind;
- They must not be under 18 or lack mental capacity;
- A beneficiary under the Will should not act as a witness;
- The spouse or civil partner of a beneficiary under the Will should not act as a witness.
It is crucial to note that if a beneficiary under the Will or their spouse or civil partner acts as a witness then that beneficiary will not be able to inherit under the Will, but the remainder of the Will could still be valid.
It should be obvious from the above that social distancing is creating significant practical problems for the valid execution of Wills. In many cases the beneficiaries of a Will live with the testator and arranging independent witnesses is almost impossible, particularly for individuals who are being shielded. STEP has noted the following in its newsletter of 23 March 2020:
“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) suggests it may be sufficient to have two witnesses who are in line of sight though not in the same room.”
The case law that STEP refers to emphasises the “visual presence” of the witnesses, i.e. the testator and witnesses should be able to see each other, but anything less than two witnesses in the same room at the same time may expose the Will to potential challenges. No additional guidance has been released at this time and there is at present no suggestion that the government is looking at relaxing the rules, as some other jurisdictions appear to have done. We would hope that given the current circumstances any court asked to adjudicate upon the validity of a Will executed during the period of strict social distancing will account for the significant difficulties encountered by lawyers and their clients, but at this time we simply cannot be certain.
Our General Advice During the Pandemic
It is important to emphasise that this briefing note merely gives an outline of the legal position and the difficulties presented by the coronavirus pandemic, but what should be evident is that while making a Will may appear to be easy, it is in fact fraught with complications and it is therefore important to take proper advice, when making a Will, from a specialist lawyer, to ensure your Will is valid and avoid the numerous potential pitfalls outlined above.
For further advice on Wills and Private Client matters please contact: