The Challenges Of Dying Tidily
Please note: this was first published in the Law Gazette run by The Law Society
The coronavirus pandemic has brought many challenges to the country. As a profession, solicitors adjusted to home-working and a life of video conferencing with clients and online court procedures. As the country moved into lockdown, it seemed that very few of our physical legal encounters could not be replicated through the use of technology. Making a will is proving to be an exception.
Private client solicitors have faced their own challenges in coping with the sudden increase in demand for wills coupled with the introduction of new rules on social distancing and self-isolation that apply to their clients.
Politicians’ daily briefings have provided updates on the numbers of people who have passed away due to coronavirus. The crisis has changed many people’s attitudes to the essential nature of having a will. It brings into perspective our own mortality and the need to put our affairs in order. Putting a will in place is an essential thing to do in life and a reflection of this importance was the fact that solicitors who write wills were designated as key workers.
Sadly, many of those who have passed away did not have opportunity to get their personal affairs in order. Many will have died without leaving a will, or left a will that is out of date and did not reflect their current circumstances.
We have seen that many people instructed a solicitor to make or update their wills. The requirements on social distancing and self-isolation meant that, as a profession, we found many ways to move from our traditional face-to-face model of instruction-taking to a faceless world of client interaction. Having taken instructions, solicitors then worked on ingenious methods to facilitate will-signings that comply with the formalities: signing wills in gardens, across driveways and patios, on car bonnets, or witnessing through patio doors – all to maintain social distancing.
For all sorts of reasons which are difficult to critique, in order to make a valid will in England and Wales, clients need to sign their will (or acknowledge their signature as their own) in the presence of two witnesses. The witnesses then need to sign (or acknowledge their signature) in the presence of the client. While the requirements are simple to follow for a solicitor supervising a client signing their will, there is a lot that can go wrong when the signing is unsupervised.
Not everyone wants to instruct a solicitor. Some may have taken the decision to prepare their will themselves or ask a relative, carer or friend to do so on their behalf. As just one mistake or omission, no matter how small, may invalidate an entire will, there is a possibility that these homemade wills might not comply with the necessary formalities or may be unclear as to the intention. The loss and grief that families have already suffered after a loved one dies from Covid-19 will only be compounded if the will is invalid because the formalities were not complied with, leading to concerns about living arrangements and financial security.
As a solicitor who makes a living from preparing wills, I always recommend everyone should have a will and that it should be written and drafted professionally. However, a large proportion of the population that should have a will does not. We need to do a better job of explaining to the public why they need to make wills and why this should be done using a solicitor.
Planning opportunities exist in wills which clients may not have previously considered. This may be to provide for long-term care or for assets to pass to the next generation in a tax-efficient manner. This means solicitors moving beyond just writing wills, and being fully committed to properly supporting clients to consider their plans for the future.
As a profession we should look to provide a review of the client’s personal affairs (or those of their family), including the effective succession to family assets, including property and business interests whether in the UK or overseas; advice regarding property ownership and co-ownership arrangements; the mitigation of inheritance, capital gains tax and other UK taxes; the creation and use of trusts and other structures to effectively manage and protect family wealth; providing for circumstances when our client is not able to deal with their affairs themselves; making effective provision for long-term care; and encouraging charitable legacies.
The coronavirus pandemic is a fast-moving situation and the profession is facing unprecedented challenges. It brings into focus the fact that the law of wills needs to be modernised to take account of the changes in society, technology and medical understanding. The Law Society has been liaising with the Ministry of Justice to discuss proposals for legislative reform to address the challenges posed by the pandemic, without resorting to electronic signatures or remote witnessing to execute wills, which could compromise safeguards against fraud and abuse.
As the country contemplates a release from lockdown, these challenges continue to present themselves in relation to the formalities. Whatever form new legislation takes, solicitors should embrace the opportunities it will present.