May I ask what practitioners are doing about the execution of wills during this period of lockdown?
Is there any merit in getting STEP/SRA/ICAEW / Society of Will Writers to lobby the MOJ/The probate registries to bring in interim and emergency powers to enable practitioners to witness wills remotely via video (Teams/Zoom/Facetime).
We could witness wills online where the testator signs the will, with a new attestation clause citing that the will was signed in view of the witness who was attending remotely and that specific marks were put on the will as well as the signature and the date of the execution marked, with the will then being posted to the witnesses who then sign in the presence of each other and date their signatures, with the will being effective from the date of the signature of the witnesses. The witnesses then also sign a separate statement of truth confirming the facts.
We feel this is becoming more necessary and more urgent as elderly and vulnerable folk are focusing on their own mortality and want to do something about it. Whilst those in the business of helping clients make wills are treated as essential workers under the current guidelines, we face the difficult of not being allowed into care homes and increasingly are being locked out of sheltered / retirement accommodation where the owners are simply refusing to allow any visitors into the premises and are trying to prevent residents from leaving.
Has anyone taken any steps to introduce alternative methods of execution or do practitioners not feel there is any merit in this suggestion. Feel free to say of you think this is int he realms of fantasy!
The MOJ has added solicitors dealing with the execution of Wills as ‘Key Workers’ and I understand that the probate registries are looking urgent ways of relaxing the rules.
I now have a few that need executing, but luckily it is possible to arrange it so that my wife and I can witness the testator/donor from outside from a window, either kitchen or living room.
The alternative is to see if Thier neighbours can do the same, from a distance, eg from conservatory or garden if it’s not possible for you to go yourself.
Not ideal, but allows for the execution satisfying current rules until new rules come in.
Needless to say, always adhering to SD guidelines.
I think your suggestion is excellent and this addresses a crucial question for the profession.
Who knows how long this may be an issue; especially for the elderly clients until a vaccine is available?
I have heard that in the Financial Services sector, advisers are being told that when it comes to ID and signed documents, some companies are allowing the adviser to witness the Documents being signed and ID being shown via live video calls.
The clients then send scanned copies of ID and/or the ‘application’ documents and ID to follow by post where possible.
The Certification then states that the adviser has seen the documents/signing in ‘real time’ and of course the signatures reflect those on the applications. Could these types of processes be used for ‘Witnesses’ to Legal documents?
As you intimate, surely the most important element in these difficult times is that we do all we can to assist the clients for whom this issue is an emergency?
Too often, when trying to accommodate testators in unusual situations by bending the rules, there is a challenge and the professional is the one who gets bitten on the derriere.
Unless the rules on the execution of wills are relaxed, or the Probate Registry(s) are given discretion over what is “acceptable” execution, I would be very wary of going outside what is accepted practice, as reflected in the wealth of case law on this issue. If not, I fear that litigators will benefit greatly, at the expense of those trying to accommodate clients in what we all agree is the most trying of times.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
This is an important issue. Besides the question of how to supervise execution - remembering that the solicitor can supervise remotely without having to be one of the witnesses! - there is also the question of capacity, and following the Golden Rule, in the case of a testator who is very unwell, needs a will urgently, and may be suffering from hypoxia as a result of the pneumonia caused by Covid-19. This can cause delirium.
I have written a short item on LinkedIn, drawing on experience from another case I had involving hypoxia, advising that it would be sensible at least to note down the testator’s latest O2 saturation reading and take extra precautions if it seems lower than say 90%.
Whilst I have not tried Zoom yet I have been reading there would appear to be privacy issues with regard to this system. Uninvited people have, apparently, been able to access meetings.
Zoom is in many ways better than Skype and far easier for elderly people to use. The recent update requires passwords to be used to enters meetings to address the privacy concerns.