As I am sure most firms are, we are having discussions about any necessary changes to our usual procedures in light of the current health concerns. Of course, a large proportion of our clients are in the ‘at risk’ category and it appears will soon be told to avoid contact with people.
With this in mind, have members come up with any solutions with regard to the witnessing of Wills, assessing capacity and general advice.
Our ideas have ranged from emailing a Will to the client and leaving them to sort out the witnessing (we all know the problems with this) to attending the client, posting it through their letter box and going through the document from outside through a window. The client then signs and posts it back at which point it is witnessed from outside. The current thoughts appear to be that the virus could survive on paper for up to 12 hours so just handling the document could, theoretically, transfer it. We have also considered asking clients to sign a disclaimer if we do attend. The current front runner, however, is signing at the direction of a testator having been through the document with them through a window…
Of course, most general advice can be delivered over the 'phone and instructions taken. However, this can leave us open to claims of undue influence and it is notoriously difficult to assess capacity this way.
We are concerned that our younger members of staff, in particular, could be guilty of transmitting the virus having been unaware. Question 2 is, in the opinion of members, which would be more negligent? Infecting a vulnerable client or failing to ensure the Will was correctly attested?