In the midst of the COVID-19 pandemic, many of us are questioning what would happen if we died. This has sparked a huge increase in those seeking advice on will writing.
Solicitors and will writers acting in connection with the execution of wills have been categorised by the Government as key workers and thus many continue to offer their services during this unprecedented time.
What we already know:
For a will to be valid, it must be executed in accordance with S9 of the Wills Act 1837 (the “Wills Act”); meaning the execution of the will must be witnessed by two independent witnesses.
Questions have been raised as to how a will can be witnessed, in accordance with the Wills Act, whilst still complying with the required social distancing rules. This has led to increased concern that it may not be possible to make or update a will during the pandemic.
What can be done?
We’re pleased to say it is possible, but adaptive measures need to be taken. We have created a table, below, setting out several ways in which the current problem is being addressed – most ideal to least desirable, with some thoughts added:
|COVID-19 – Method||Advantage||Potential problems|
Will executed in the presence of 2 adult witnesses who are not beneficiaries in the will.
Wholly compliant with S9, if done correctly. The way everyone would prefer to deal with execution!
Rare situation to have 2 independent adults self-isolating with the person making the will!
Will executed in the presence of 2 adult witnesses exercising COVID-19 social distancing – various methods including:
> Setting up the will on a table in the garden with separate visits to sign the will by maker and witnesses but each remaining in a position to watch the signing.
> Witnesses watch signing through a window – will then passed through the window for witness execution.
> “Drive through” service provided which is a variation on the above, but execution occurs on bonnet of the car with all watching/signing
|Professional witnesses tend to be more reliable witnesses if questions asked later. Professionals can answer most queries about the will if there are any concerns or problems.||
It is not certain that witnessing a will can take place through a window – although the historical case of Casson -v- Dade (1781) suggests that this is possible.
If the witnesses don’t record the witnessing steps carefully potential non-execution claims could follow – good notes and preferably a video recording of the event would be a wise precaution.
Will executed in the same way as above save that the witnesses are not professionals – could be neighbours or friends. The methods adopted would again involve using the COVID-19 social distancing measures described above.
Might be easier to find these witnesses than professionals (particularly if time of the essence). Potentially cheaper. Neighbours are literally next door.
Lay witnesses may not be allowed to visit by law as not classified as key workers under COVID-19 rules.
Same problems concerning witnessing through windows as above.
Bigger risk that the execution is done incorrectly, full notes or recording not completed – opens potential challenges later
With no access to witnesses at all, the will cannot be executed properly. Rather than having no testamentary wishes recorded, some are signing the will with no witnesses and then signing a letter of wishes setting out that it is their wish that the beneficiaries listed and not listed in the unwitnessed will are asked to sign a Deed of Variation to change the effect of intestacy to ensure the terms of the unexecuted will are followed.
The will of course be invalid until it is properly executed and witnessed (post COVID-19) but at least the wishes of the deceased are recorded having taken proper advice and it is then open to the affected beneficiaries (both those named in the letter of wishes and those who would inherit on intestacy, if different) to “make good” the will by way of a Deed of Variation after death. Better than no will at all?
The clear and obvious danger is that the interested beneficiaries refuse to sign a deed of variation after death. Every single interested beneficiary must consent and sign to give effect to this.
Need to demonstrate that person making the will intended the will terms to apply through a deed of variation – good notes required.
Whilst the Ministry of Justice is considering new measures, as things currently stand, the following CANNOT be done:
The Law Society has also provided guidance for those preparing wills and LPAs:
As night follows day
The COVID-19 pandemic will have a lasting legacy – many families losing senior members, and in circumstances where they are likely to be financially struggling. The pandemic will pass and, God willing, quickly. However, there is no doubt in our view that with the increased number of estates to be dealt with will come a clear spike in the number of contentious probate claims as people try to financially recover.
What this really means
These increased claims are likely to look, in the first instance, at whether any wills executed have been done so properly and, if even if not, what the intentions of the deceased were. This process starts with an enquiry called a Larke -v- Nugus which seeks, through a long list of questions, to get a clear picture as to how the will was executed and the role of the will drafter, maker, witnesses and interested parties. It is essential that full and complete notes are kept, including a consideration of the deceased’s obligations. This is likely to now extend to include a video of the execution process – all of this needs recording and storing safely so that it can be called upon if a disclosure request is received.
Help is at hand
IDR Law has collaborated with Larke to produce a standalone software system that runs alongside your current will-making process (whether that is software driven or using traditional precedents). Larke provides the following:
If you don’t already have a will writing software package with in built note collation/protection (e.g. Legacy), take a look at Larke (www.larkeonline.co.uk).
IDR Law is an approachable, boutique, firm and the only one in the country dealing solely with inheritance dispute resolution. Whether you’re a law firm, or an individual who feels they would benefit from our expertise, get in touch here, email us at firstname.lastname@example.org or call on 01423 637050.