Difficulties Of Making A Will During The Pandemic

As we mentioned previously, the number of enquiries regarding Will making has increased by 30%, according to the Law Society; the majority of these instructions have come from the elderly and the vulnerable, who by current definition need to self-isolate for a period of time.

Delaying Will writing services can obviously be risky for the testator, who may already have ill health, but it could also lead to a backlash for the Will writers or solicitors who, despite complying with government advice, may be perceived as refusing to provide the service.

These uncertain times are highlighting worries, which include:

How the practitioner can assess and record the testator’s mental capacity

How to sign the Will, it is thought Covid-19 can survive on paper for up to 12 hours meaning it could be transferred on the drafted Will

How can independent witnesses witness the testator’s signature due to current the situation

Advice from STEP outlined that:

“Practitioners are in a difficult position as it may not be possible to comply with the government’s guidance to reduce social contact while also arranging for wills to be validly signed”.’

Its recommendation is that the government’s guidance should be every practitioner’s starting point.

“In practice this may mean sending wills to clients and asking them to make arrangements for suitable witnesses to visit them while maintaining distance so far as possible. However, it will be for each practitioner to make a decision on the merits of the particular case and the relative risks to both the client and the practitioner.”

A partial solution may lie in utilising technologies such as Skype, WhatsApp, Facetime or email which will enable you to consult with clients to draft the Will.

As of yet, there is not any official confirmation that e-signatures or video-witnessing will be accepted by the authorities.

The government recently officially accepted the Law Commission’s opinion that electronic signatures on contracts and many deeds are already legally valid in England and Wales without the need for formal primary legislation, but Wills remain an exception to this.

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