Planning ahead in the virus crisis
NHS workers fighting Covid-19 on the front line, together with the elderly and vulnerable, lie behind a huge spike in demand for Will writing over recent weeks, according to the professional body for solicitors.
The Law Society says many firms have reported a 30% increase, as a result of worries about the coronavirus pandemic, but the lockdown and self-isolation are creating new challenges in getting the Wills drafted and signed while still complying with legal requirements.
There has been a surge in people looking to set up Powers Of Attorney as well, to enable others to act on their behalf in managing their financial, property and other affairs, but that is also proving a challenge during the current crisis.
“It’s important to get it right when dealing with vital documents involving your assets,” explained Gemma Smith, Head of Wills and Trusts Department with Wolferstans solicitors. “There are issues around demonstrating that someone has the ability to make such decisions if they are elderly or unwell, as it is likely to be difficult to get a doctor to verify their capacity with the current pressure on the NHS, which may be needed if the Will or Power Of Attorney is later to stand up in court.
“In such situations, the ideal is to sit down with the person face to face to get a sense of how they articulate their choices and to be sure the outcomes are what they really want, whether deciding who will inherit through their Will, or appointing attorneys to manage their affairs.” In today’s climate, such discussions are more likely to be by telephone, email or possibly video conferencing, particularly where someone is ill, but if an independent professional is involved, there is a greater chance that wishes will later stand. They will check if you are leaving yourself open to claims on your estate by excluding anyone, and advise on the appointment of attorneys, to be sure they are fit for the task and understand their responsibilities and how they will be held accountable.
A professional can also help to ensure that the Will or Power Of Attorney is legally binding, as the actual signing and witnessing of a Will remains an exception to the recent shift towards accepting electronic signatures on contracts and many deeds in England and Wales.
While live video witnessing in such situations is under discussion, the current rule is that anyone making a will must sign in the presence of two witnesses, who must in turn sign in the presence of the person making the Will. Physical presence is essential but presents a real challenge given the present regulations requiring social distancing, particularly as anyone who is a beneficiary will lose their gift under a Will if they witness it. It means that immediate family members, who are most likely to be available, cannot be a witness if they stand to inherit anything.
Even witnessing from the next room or through a window might be challenged as not being formally in the presence of the person making the Will, although in a case that went to court almost 250 years ago it was agreed to be sufficient to have two witnesses who are in line of sight even though they were not in the same room. (Casson v Dade 1781)
“It’s very difficult to avoid all contact,” explained Gemma. “Many solicitors are going through documents and then overseeing the signing through a window. It’s important to use sanitiser, gloves and separate pens to protect someone who is likely to be vulnerable, or where someone is already infected.”
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