There will also be a steadily increase in the need for probate services as the death rate sadly goes up, so private client teams may well be finding they will need to expand their teams to cope with demand.
However, wills still need to be validly executed in accordance with the requirements of the Wills Act – specifically that they must be attested by two independent witnesses and in the presence of the testator.
An immediate problem is the fact that we are in lockdown and face-to-face contact with clients is not happening. And as the number of wills being drafted increases, there is the need for firms to establish a smooth process for the valid execution of wills that is uniformly adhered to by all members of the team. But we do not yet know how this is to happen in the absence of formal guidance.
Wills can’t be executed remotely via video conferencing – at least, for now. At the time of writing, the Law Society, the SRA and the Ministry of Justice were in discussions about how the 200-year old rules could be worked-around in a way that is both practical and protects the testator. Video conferencing facilities is, of course, under consideration. In fact, the Law Society of Scotland has already issued guidance which suggests it is competent in Scotland to witness remotely via video.
The key development for wills solicitors so far is the initial suggestion that witnessing a will through a window, if the witnesses are clearly in the line of sight, could be sufficient to ensure the will is legally valid. The will could be passed between the individuals through an open window or a letter box, for instance, to maintain ‘social distancing’. (Remember, that solicitors dealing with the execution of wills are identified as ‘key workers’.)
There are also suggestions that the case of Casson v Dade 1781 could be relied on. This is authority for arguing it is sufficient to have two witnesses who, though not in the same room, were in the line of sight. In that case, the testatrix had asthma and her attorney's office where the will was drawn up was hot, so she went to her carriage in order to execute the will. The carriage was in close enough proximity to the window that she could see what was going on in the office. This was sufficient for the court to decide the will was valid.
However, there is the risk that witnessing through glass at a distance could be challenged, for example, on the basis that the testator was not ‘present’ for the purposes of the Wills Act, or the testator was under duress. That said, the execution of a will could, feasibly, be supervised by the solicitor using electronic means if they are merely observing rather than witnessing the will.
Alternatively, the testator and or one of the witnesses could record it. The recording could then be kept on file as contemporaneous evidence should a dispute arise.
And as a failsafe, the Law Society suggests for now that you discuss the issue of re-signing the will with the client after the lockdown period ends.
The Law Society is publishing various pieces of Covid-19 related guidance on different issues on its website. On the matter of refusing to take instructions on emergency wills from vulnerable individuals, the Society provides, reassuringly, that you can’t be forced to give legal advice in such circumstances. If you think following the guidance on good hand and general hygiene and social distancing is impractical due to the location of the prospective client, you can decline instructions.
But it warns solicitors to act reasonably and assess the measures in place rather than adopt a blanket ban. The Society recommends you keep a clear, detailed record of your reasons for declining to act, including any distancing and hygiene restrictions, difficulties or personal circumstances such as self-isolation which apply.
What if you have accepted instructions to write an emergency will - can you save time by avoiding the usual client care letter obligations? The SRA’s current guidance is that if you do not give the client the usual client care letter information as required in the usual circumstances, the SRA will not take regulatory action “if there is a good reason resulting from the current coronavirus crisis for not providing this in writing”. However, the key information must have been explained to the client; and this and your decision-making has been documented.
For now, practitioners need to take care not to bend the rules, so to speak, otherwise they could find it comes back to haunt them in the form of a negligence claim and or regulatory action.
And keep up-to-date as the latest guidance is released.