Melinda Giles, partner at Giles Wilson, Executive Committee member of the Law Society Private Client Section and member of the Law Society's Wills and Equity Committee, discusses wills, the legalities, and what you can do to help clients during coronavirus.
Solicitors have much in common with each other in whatever area of law they practise; we all abide by the same principles including doing the best for our clients and acting with integrity. However, this current unprecedented situation has led to the Ministry of Justice (MoJ) classifying some of us as key workers who need to leave home in order to work, and whose children will still therefore be able to attend school.
Key workers and wills
With the Law Society’s input, solicitors “acting in connection with the execution of wills” have now found themselves on the list. This brings into sharp focus the fact that we are dealing with a national crisis that will lead to deaths, and that solicitors who make wills have a part to play in that.
Private Client solicitors are all seeing a steep increase in the number of instructions as the public stare at their own mortality in a way unseen since war time. Add to that the fact that the execution of a will is the last bastion of law where physical face-to-face contact is the only legally valid way - at a time when social distancing is the new code of conduct - and we have a uniquely challenging situation.
What is the current legal position?
The starting point for the valid signing of wills is found in The Wills Act 1837 s9. one requirement of which is for the signing of the will to be made or acknowledged by the testator in the presence of two or more witnesses at the same time.
Nothing could be more contrary to the COVID-19 safety guidance, and so why, the question is asked, is there not a relaxation of these legal requirements in these exceptional times? The Wills Act 1837 does make special provision at s11 for those on active military action to make privileged wills, but this is specific, and cannot be extended to civilians without further legislation.
The Law Society has been working on this issue and talks are ongoing with the MoJ to find a solution, and with the Solicitors Regulation Authority to ensure that a common sense approach is taken to enforcement.
Risks in relaxing formalities
This is complex. There are many risks in relaxing the formalities around the signing of wills; this is a challenge raised by the Law Commission in their 2017 Wills Consultation. Compare this to their consultation on digital signature on deeds that confirmed that electronic signatures are valid under English law, but made an exception for wills. The vulnerability of the clients concerned was cited as the reason.
It is not difficult to see why this is a tricky subject; once the testator dies, so does the only person who can tell us about the actual circumstances in which the will was signed. Was there someone else present who was forcing them to sign the will, and was it actually them that did so? Did they understand what they were signing? The questions around this are infinite.
The current safeguards are stringent, but despite this, there are still a great number of wills that are challenged. Bearing in mind that there are only a few instances when someone has the locus to challenge a will in the first place, it may well be that we are only touching the tip of the iceberg in successfully exposing the number of wills made as a result of undue influence, or worse.
Here, then, are some of my own tips for good practice in the era of COVID-19.
Where your client is known to you, this will be less problematic, and is an opportunity to demonstrate how helpful a good relationship with your solicitor can be. However, you should take careful attendance notes of the reason for the change in a will, and where possible obtain electronic visual instructions, or, as many of us have been doing, sit in a car next to a client in a car and speak on a mobile phone!
Being sure the client need a will
We must look at the situation should the proposed will not be made. Sometimes just revoking an existing will or dying intestate achieves the same thing and with less risk.
Signing of the will
Where possible you should witness the will. Bear in mind that most clients are in their own home with family members who will be the beneficiaries; a beneficiary witnessing a will loses their entitlement under that will. Whether you visit the client in their home, or your office is opened specifically for this purpose; you need lots of space, and a clean pen for each of the testator and the two witnesses.
Above all, keep your colleagues and your clients safe, whilst doing your best to do what we all strive to do: the best for our clients with the utmost integrity.