There’s been much talk in recent weeks about potential legal changes to how wills are executed and witnessed during lockdown.
But, as of the 22 April 2020, there’s been no such change and the BBC has reported that there may well not be at all.
So, as experienced lawyers in the sector, we’re working to the existing 183 year old law.
With that law firmly in mind, today I visited (as a designated key worker) a longstanding client to oversee the execution of her new will – at an appropriate social distance.
Before the meeting, we first had to work out the best way to take instructions in the current situation. My client’s wishes were fairly complex. She’s relatively elderly – although extremely bright and switched on. The terms of her will (as she’s fully aware) have the potential to cause some consternation in the family after her days.
Ordinarily, we’d prefer to visit her at home and discuss her instructions face to face, as we have previously done. But this time, we had no choice but to work remotely. So, we had our initial discussions by telephone – and a detailed note was, of course, kept.
Drafting a will in lockdown
We prepared a draft remotely, which we e-mailed to our client. She then provided detailed comments and questions via an exchange of e-mails. This provided us with a clear audit trail of her understanding of the issues and the operation of the clauses. After this, we were able to agree on a final draft.
We then had a video conference conducted via Microsoft Teams which, with the client’s permission, was recorded and saved to our electronic file. In that meeting, we discussed at length each clause of the will. We also discussed the potentially controversial aspects of the will and our client provided her full rationale for the decisions she had reached.
This recording provides a contemporaneous record, in her own words, of our client’s understanding and her wishes and reasoning. It also demonstrates quite clearly that she has full capacity and has taken this decision of her own free will.
In the interests of absolute completeness she also obtained an up-to-date letter from her GP confirming her capacity, which was then e-mailed to me and saved on our electronic file.
Signing the will in lockdown
Turning to the execution itself, the Wills Act sets out the legislative requirements around signing and witnessing a will. Social distancing makes this challenging, but not impossible.
Fortunately, my client has a lovely garden, and it was a beautiful day!
She was able to print the final agreed draft at home and had set up a table in the middle of the garden where she had left the will. A neighbour had agreed to act as second witness.
Given the size of the garden, we were all able to stand an appropriate distance from each other and I explained briefly to the neighbour that the client was signing her will. We both then observed from a safe distance her doing so and, once she had stepped back, we then each took it in turns to approach the table to sign the document, witnessed by each other from a safe distance. We all used our own pens which we had brought with us, and wore plastic gloves, which we disposed of immediately afterwards.
As I was last to sign, I checked that all formalities had been complied with and I will now arrange for the original will to be stored appropriately. I will send a scanned copy of the signed version to the client and have recorded a full note of the meeting which confirms that the execution was undertaken in way that complies with the formalities of the Wills Act.
For good measure, I also took photographs of the set-up, which you can see here.
So, on this occasion, it was possible to establish and record our client’s wishes properly, give effect to them by way of remote communication, and then fulfil the requirements of the Wills Act for execution while following government guidelines around social distancing.
I know that this won’t be easy for all clients and practitioners. And, if the process can be eased by relaxing the legislation then that should be done. I know the Law Commission has previously consulted widely on modernising the Wills Act and steps have been taken in Scotland to help by allowing wills to be witnessed remotely by video conference.
Nevertheless, it’s looking increasingly likely that the 183 year old law in England and Wales will remain as it stands, for now. So, I suspect I’ll have a few more garden visits in the coming weeks.
On the plus side, at least I’ll get some sunshine.