The challenges of the current Covid19 crisis have been met head on by the GAD Private Client team to ensure that our clients’ needs and requirements are met with everyone’s safety in mind and with no loss to the quality of the legal advice and service we provide.
In this blog post our Head of Private Client, Ian Sturgess, addresses three distinct issues in respect of making a will and lasting powers of attorney, namely:
- How to take instructions without actually meeting you in the office or at your home
- How to ensure you have legal capacity and are not being put under pressure (duress)
- How you can actually execute your legal papers when you are not in front of your trusted lawyer
A. Taking Instructions
With clients spread throughout the world, we have always had to adapt to the limitations of not physically meeting with our clients. Instructions from you can easily be taken by telephone or more recently through video conferencing – via either ‘Face Time’, ‘Skype’ or increasingly ‘Zoom’.
Communication in this manner enables the same interview process to be undertaken as if your solicitor and you were sitting across the table from each other in the office. By speaking directly with you, comprehensive instructions and information can be obtained in relation to your family and financial affairs and any areas of complexity or confusion resolved.
In fact – whilst some law firms are heralding this as the ‘new garlic’, the taking of instructions ‘remotely’ has been a common practise of this firm for many years.
Once your instructions are confirmed, we will prepare an initial draft for your approval, the same being issued by email as a PDF document for review later the same day. If you do not have access to email then a ‘hard copy’ can be posted within 24 hours. Should you require any additions to be added following your reading of the draft (often last minute gifts spring to mind!) these can be addressed where after an engrossed Original Will is printed for formal execution (more details below in this regard) in your own home.
B. Capacity and Undue Influence
The primary danger in not having a face to face meeting is the risk that an individual lacks the relevant legal capacity to make a will or is under duress or undue influence from a family member to benefit them more favourably and to the exclusion of other family members.
This risk is greater if instructions and communications only ever take place by post and email. However, as experienced private Client Lawyers, the team at GAD is able to take appropriate ‘visual clues’ and ‘nuances’ of conversation to determine and be satisfied that an individual satisfies the first three essential elements of the leading Banks v Goodfellow test:
- Is the client able to understand the nature of the act and its effect
- Is the client able to understand the extent of the property they are disposing of, and
- Is the client able to comprehend and appreciate the claims to which he ought to have regard to
The fourth element can proove more tricky (even if a face to face meeting had taken place):
- Is the client suffering from a disorder of the mind [that] shall poison his affection, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made
The duty of your GAD Lawyer is to ensure that as the client you are not deprived of the right to make a will. Only if it is clear to us beyond any reasonable doubt that you lack capacity or are a vulnerable person being placed under pressure would we refuse to act upon your ‘flawed’ instructions. Instead we will proceed upon the basis that you have capacity and are exercising free will, qualified with the following important warnings:
- If any doubt exists with regard to capacity we will recommend that you agree to a medical assessment to confirm you retain the relevant cognitive ability to make a will
- If any potential exists for undue influence to be exerted upon you, we will attempt to reconfirm your instructions upon a further occasion to hopefully enable you to provide free and candid instructions without interference
- We would recommend that once the Covid-19 crisis has passed that you attend at the office to re-affirm your instructions and if appropriate, to re-execute a further copy of the Will to re-establish its authority in the presence of your lawyer
The above advice is given to ensure that once the crisis is averted, you are able to establish that your will is legally valid – this benefits ultimately your intended beneficiaries and weakens the case of any disgruntled family member who will use the current crisis and its effect upon the will process as an argument to challenge your will that they believe is not to their liking!
C. Execution of your Will
This is clearly the most problematic issue caused by the crisis. For a Will in England & Wales to be valid, it MUST comply with section 9 of the Wills Act 1837 which provides that a will is not valid unless:
- It is in writing, and signed by the testator or by some other person in his presence and by his direction
- It appears that the testator intended by his signature to give effect to the will
- The signature is made ……..by the testator in the presence of two….witnesses present at the same time, and
- Each witness…..attests and signs the will………in the presence of the testator
GAD’s standard ‘Instructions upon Signing Your Will’ details the exact stages to follow to accurately follow this legal execution process.
We have highlighted within this section 9 requirement, the concept of ‘presence’. The social distancing rules impact directly upon this requirement. This concept can be formulated into the following rules:
Visual Contact – For ‘presence’ to exist, there has to be visual contact between the parties so that all parties can see if they choose to look – hence a number of settled court cases where the farmer signs their will in his cottage whilst his witness rides past the farm house window on a tractor, peering in on the activities! Contrast, the testator and his witnesses standing at opposite ends of a function room with 100 guests in-between obscuring any meaningful view of the signatures process.
Knowledge - “You cannot be a witness to an act that you are unconscious of…..the witness should be able to say with truth, “I know that this testator…has signed this document”’.
Continuous Execution – the entire process between the three key parties (you and your 2 witnesses) needs to be a single continuous event and not undertaken over the course of multiple days in different locations.
How can the Will signing process be achieved in practice?
Follow these steps and your Will is validly executed under section 9, our standard Will execution instructions need to be followed with the following ‘tweaks’:
Testator signs will (Recommended)
- You sign the will (wearing disposable gloves, if possible) within sight of the two witnesses. This could be on either side of a window or with the front door open or across a low garden fence. In a very small number of cases, there may be members of the household who are neither a beneficiary of the will or a married partner of a beneficiary. In such exceptional circumstances finding a witness is simple. However in most cases the household members will be family and ultimate beneficiaries. In these circumstances external witnesses are required. Ideally this will be neighbours but could be a visiting ‘volunteer’ (but it would need to be established, if for example it was a professional home help etc that they were not prohibited under their contract of employment to act as a witness)
- Having signed, you put the will outside the door and the witnesses (also wearing disposable gloves) pick it up and sign within sight of you.
- If there are any capacity / undue influence issues, it would be helpful to have a photograph of you or a video taken on your phone to establish visually your ability to engage in the process free of confusion and duress – there’s nothing like a picture and more so a video, to paint ‘a thousand words’.
Signing on behalf of the testator (ONLY when absolutely necessary)
It is possible for another person to sign on behalf of you, provided it is done in your presence and by your direction. A person signing on your behalf can also be a witness. This may be necessary if you have the infection or are extremely vulnerable and cannot risk proximity (even at distance) to anyone.
However, to avoid any contamination through handling documents, the will would have to be sent to the predetermined witnesses in advance, one of whom then signs on behalf of you either outside a window or open door or across the garden fence with you within sight. They then both sign as witnesses. We would also have to amend the standard attestation clause at the end of the will to ensure that the same imputes a presumption of knowledge and approval where a person signs on your behalf. We would therefore amend the attestation clause to read:
“Signed by [X] on behalf of [T] who was unable to sign because of social distancing requirements resulting from the Covid-19 pandemic. T had read and approved the content of the will.”
The obvious draw back here is that the witnesses have an opportunity of reading your will.
At present various bodies have petitioned Parliament for a limited relaxation to the section 9 formalities to deal with the practical problems the crisis is creating. To date no changes have been legislated upon and so accordingly everyone must work within the current section 9 requirements with the due modifications listed above so as to maintain everyone’s well- being.
Contact Gregory Abrams Davidson Solicitors
Call us on 0808 164 0683 (Liverpool City Centre), 0151 733 3353 (Liverpool Penny Lane), 0151 494 0777 (Liverpool Garston), 020 8209 0166 (London North West), 020 8209 0166 (London City), or fill in our online enquiry form and we will get back to you as soon as possible.
