11 May 2020 | Comment | Article by Matthew Evans

The legal impacts of lockdown: How we’re writing, signing and validating wills during COVID-19

The legal profession as a whole has reported a significant increase in demand for will writing services and that has certainly mirrored our experience at Hugh James.  

Given the current social distancing rules, there are potentially significant challenges around making an effective will – but we’ve managed to adapt and continue to support people at this time.

 
Writing wills remotely

While we can’t take and give instructions face to face, we’re actually very used to doing this remotely and are well set up to do so.

We’ve seen a big increase in instructions via our telephone and online will services.  Not all law firms are equipped to do this and particularly at this time when volumes have increased suddenly.

At Hugh James, we’ve adapted our processes to place even less reliance on paper communications and it has worked very well so far. It was a project that was on our ‘to do list’ anyway and, for obvious reasons, the current circumstances forced us to bump it to the top of the list. We’ll most likely carry on in that way, post lockdown, and I suspect other firms will do the same.

 

Signing wills remotely

There are also well documented difficulties about ensuring that wills, once prepared, are properly executed in the current circumstances. 

For a will to be valid it requires two independent witnesses and that is obviously particularly challenging at the moment.

Lawyers are finding practical ways to fulfil the legal requirements whilst maintaining appropriate social distance and have been designated as ‘key workers’ when undertaking this sort of work. 

 

In fact, I’m off to see a client this afternoon to witness, along with a neighbour, a will in his garage, with appropriate distance being maintained and separate pens being used. 

This is clearly not ideal, however, and the Law Society has been lobbying for the law currently governed by the Wills Act 1837 to be changed or temporarily relaxed to reflect the current circumstances. I’ve written about this before.

The law in Scotland has now been relaxed to allow for witnessing via video link but, as matters currently stand, it now appears likely that the law in England and Wales will not be changed.  That will mean continued practical challenges and I can also foresee a spike in contentious probate claims in the months and years to come following lockdown – whether that’s challenges of wills that were potentially not properly executed or claims by family members who were not adequately provided for due to an inability by to give effect to their wishes by way of a valid will prior to dying.

Historically, the proportion of the adult population in England and Wales without a valid will has remained fairly constant at around two-thirds.  It remains to be seen whether the current spike in will instructions will be maintained or whether, when the immediate awareness of our own mortality and the abundance of free time have subsided, the previous status quo will resume.

Similarly, Lasting Powers of Attorney are also of increased importance, particularly for those who are classified as vulnerable and may be subject to social distancing requirements longer than the general populace. 

 

Estate Administration

Inevitably, the current situation has also sadly led to an increased number of instructions for probate and estate administration services, and that is likely only to increase over the weeks and months to come. 

Again, whilst we are able to continue to deal with these matters on a remote basis, there are potentially going to be practical difficulties, as the estate administration process often involves liaising with many different third parties and institutions (such as banks, utility companies, or estate agents for valuations). 

It may well be that some of these companies aren’t open, or working at reduced levels, meaning that probate lawyers may not be able to obtain the information they need.  We’re adopting a pragmatic stance on this by submitting estimates of value to HMRC where we can, and advising them of the reason for this.  We hope and expect HMRC to take a similarly pragmatic view. 

 

The challenges with storage

Similarly, there may be practical difficulties for some lawyers around obtaining original wills from storage and sending those documents to the probate registry.  There were already significant delays at the probate registry before the lockdown and that appears to have now been exacerbated.   We’re doing all we can to expedite our applications and get them before the Registry as soon as possible.

This is clearly an unprecedented situation and one that is very pertinent to the sector in which our teams work.  We recognise that the work we do is of great personal importance to our clients and their families, and even more so now. 

In the last month or so we’ve adapted as best we can to continue providing our services remotely and have used technology wherever we can to overcome any practical difficulties.

 

About the Author:

Matthew Evans is a Partner at Hugh James and leads the firm’s Private Wealth group.  The work of the group encompasses the full spectrum of private client wok including will writing and estate planning, estate and trust administration and contentious probate.  The team represents both individuals on a direct basis and institutional clients within the sector - such as financial institutions and charities, and their customers.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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