During this worrying and unprecedented time, it may be that you have turned your mind to sorting out the ‘to-do’ list. “Get Will done” is often one of those things that’s been languishing at the bottom of the list. For many people, now feels like a good time to get it done.
But how do you give your instructions to your solicitor if unable to meet face to face? How do you get the Will witnessed? How is one supposed to do that if you are required to be in lockdown or are shielding for health reasons?
Helping you to make a Will while you are in self-isolation or shielded
It’s still perfectly possible and we can help. We have a range of communication methods to have client meetings without meeting in person. We can do this simply on the phone to get the process started or if you want to see a friendly face, video conferencing facilities such as Skype, Zoom etc. are very effective.
Taking legal instructions remotely
Normally, when a new client meets with a lawyer face-to-face at the first meeting, the lawyer has to verify the client’s identity using documents, such as a passport or driving licence. This is a legal requirement and if you are a new client this is still a requirement despite Coronavirus. We can also verify your identity online in many cases.
In order to take your instructions for a Will, we can do this remotely, but we do need to do a video conference call with you for that. In this way, we can take instructions in the knowledge that you have capacity to give instructions and these are your wishes and not someone else’s. It is harder to be certain about this if we only have a telephone call where there is no visual contact.
Once we’ve discussed and agreed with you how you want your Will drawn up, we create a draft document and email it to you for you to review. Once you are happy with it, we will email a final version for you to print out for signature. When we send you your draft Will, we’ll include specific information about how to make sure it is completed correctly, so that it will be valid.
Tips for signing legal documents during Coronavirus
You must sign the actual document yourself in person. Electronic signatures are not accepted on Wills. You also need the signatures of two independent witnesses. The witnesses should be physically present, except where using the temporary relaxation to the law permitting witnessing by video conference mentioned below.
The Coronavirus crisis presents difficulties for people needing to sign Wills. Very often people may be self-isolating or shielded. Any other people they are with in the house, are likely to be members of the family who may be beneficiaries of the Will and therefore cannot be witnesses.
The answer for many lies with the neighbours and others in local community groups. Especially in the current times, where neighbourliness is on the rise, many people will be happy to help. However, neighbours must not act as witnesses where they are beneficiaries under the Will or the spouse or civil partner of a beneficiary.
In terms of the actual signing, the witnesses must have a clear ‘line of sight’ of the will maker when the will maker is signing the will and they must understand that they are witnessing and acknowledging the signing of the document. The will maker must also have a clear line of sight of the witnesses when they sign as witnesses. The government has given examples of how this might be achieved in conformity with social distancing, provided that the will maker and witnesses each have a clear line of sight:
- witnessing through a window or open door of a house or vehicle
- witnessing from a corridor or adjacent room into a room with the door open
- witnessing outdoors from a short distance, for example in a garden.
There are the logistics of passing documents back and forth, but this can be managed through the careful washing of hands with soap for 20 seconds, as per the Government’s instructions. Separate pens can be used, and gloves worn, and it is not necessary for the solicitor to be present when the Will is signed.
Rules about witnesses
The witnesses should:
- be present at the time of signing (and they should be physically present except where relying on the temporary rules about witnessing by video conference mentioned below)
- sign the Will in your presence to confirm they saw you (the will maker) sign
- not be a beneficiary under the Will or the spouse or civil partner of a beneficiary
- be of sound mind and know what they are witnessing (however they don’t need to see the contents of the Will)
- be over the age of 18 and not blind
- be regarded as independent i.e. they should not be close relatives.
Witnessing a will by video conference
Witnessing requirements are now being relaxed to allow witnessing by video conference, although this is subject to complex requirements.
During the coronavirus pandemic there has been debate within the legal profession as to whether the existing law allowed witnessing of Wills by video conference. While this debate has yet to be resolved, on 25 July 2020 the government announced that the witnessing requirements are to be temporarily altered to:
- permit Wills to be witnessed remotely, using video conferencing facilities such as Zoom and Skype
- backdate the change so that it applies to Wills witnessed by video conferencing since 31 January 2020. Backdating will not apply where the Grant of Probate has already been issued or the application is already in the process of being administered.
The changes also apply to Codicils (documents amending the terms of an existing Will) and references in this section to Wills include Codicils.
The new rules are currently set to apply until 31 January 2022, however this expiry date could be shortened or extended in the future.
The new procedural requirements for video witnessing are very complex and there is a risk that the Will could be invalid where the requirements have not been properly followed. Further details of the requirements can be found here.
It is anticipated that the legislation to facilitate this change in the law will come into force in September 2020, however it cannot be guaranteed that the legislation will be passed, or that there won’t be changes to the proposed rules during their passage through parliament.
The government has recommended that Wills still be witnessed in person where possible.
Due to the complexity of the video conference witnessing procedures and the risk of the Will being invalid if it is not done correctly, we would recommend to our clients that:
- we advise you on how best to have your Will witnessed in your particular circumstances,
- where Wills need to be witnessed by video conference, we supervise the process to ensure that it is done correctly and advise you on options to reduce the risk of problems, and
- where your existing Will was witnessed via video conference, we review this to ensure that it is valid and, if not, to advise what corrective action is required.
Often a Will can be witnessed in conformity with social distancing measures without having to rely on video conferencing, and we can advise you on how to do this.
Coronavirus and Lasting Powers of Attorney
There are two types of Lasting Powers of Attorney – Health and Welfare, and Property and Financial decisions. The latter gives your chosen attorneys the power to make decisions on your behalf regarding your finances. This LPA can also allow for attorneys to act while the donor still has mental capacity, if the donor wishes to grant this ability. This can be useful if the donor is unwell or self-isolating.
Health & Welfare LPAs allow you to appoint people to make medical and personal decisions on your behalf. Often people do not realise that their next of kin do not have formal legal authority to make decisions about their end of life care or treatment if they lack mental capacity. This can come as a shock to some. The law states that, although next of kin may be consulted, healthcare professionals in charge of medical treatment do not have to follow what the family members say.
This is why it is so important to consider making a Health and Welfare Lasting Power of Attorney (LPA). It gives the attorneys the authority to make such health and welfare decisions on your behalf, rather than the doctors or other health professionals who are providing your treatment.
The LPA covers how your attorneys may act on your behalf, for your health and wellbeing. For example, this could cover any medication or medical treatment you may require or deciding whether to place you in a care home or not. If the donor chooses, the attorneys will have authority to make decisions about end of life care. The extent of the attorneys’ legal authority is decided by you (the donor) while you still have mental capacity. The person making the power of attorney is called the donor, because they are giving authority to the attorneys to act on their behalf should they have lost mental capacity.
Your attorneys are not allowed to act for you until you have lost mental capacity. This means you keep control of these issues while you still have the mental capacity to make such decisions for yourself.
Having this LPA in place means that the people who you choose will be able to decide how you should be treated medically once you yourself can no longer do so. It is important to be aware that an LPA cannot be used until it has been registered with the Office of the Public Guardian, which means that the whole process can take up to three months. Consequently, Lasting Powers of Attorney are often something people look to put in place in advance, so that they are ready and waiting if they are needed.
During the Coronavirus crisis, it may be necessary for medical staff to communicate with attorneys by telephone or video call.
Acting as certificate provider for a lasting power of attorney
A certificate provider is needed to confirm that the donor understands the implications of making an LPA and has not been unduly pressured or unduly influenced. This person is often a solicitor. The certificate provider signs the LPA after the donor has signed.
At Tees during the Coronavirus crisis we can still act as a certificate provider for the purposes of Lasting Powers of Attorney even if we are not able to meet face to face to do so, as would usually be the case. For us to do this, we will need to set up a video conference call with you once you are happy with the documents and are ready to sign them. We can help you with setting this up if you wish.
When someone dies and leaves property, money and possessions, these assets are collectively known as their ’estate’ and it’s necessary to settle any liabilities (including any Inheritance Tax), attend to any accounting and tax reporting requirements, collect in the assets and distribute any net estate to the correct beneficiaries.
Grant of representation
In order to distribute the assets, it has long been the case in England that a ‘Grant of Representation’ is generally required, which proves the person doing the distribution, has the authority to administer the estate. This is an Executor appointed under a will, or an Administrator when there is no will.
Letters of administration
If a Will has been left which appointed an executor or executors, they will need to apply for a ‘Grant of Probate’. In the case where there is no Will, then the deceased’s next of kin can apply for a ‘Grant of Letters of Administration’ in order to proceed.
Up until 27th November 2018, part of the process in obtaining a Grant involved ‘swearing an oath’ confirming that the contents of the probate application were true. This had to be done in front of an independent solicitor. A recent reform of this procedure meant that swearing an oath was replaced with the need to sign a statement of truth. This was to make the process more modern and simpler for the client, because it no longer required signing in front of an independent solicitor and neither did it require a solicitor to act as a witness. However, the system has now been changed again.
New Grant of Representation Forms from 20th April 2020
In yet another move to further modernise the probate service, HM Courts & Tribunals Service (HMCTS) has launched new standard Grant of Representation forms, which will need to be completed. The move will enable HMCTS to digitalise the many thousands of applications they are sent every year. They also hope to reduce any errors and speed up the process of applying for a Grant of Representation. This means you will no longer need a signed statement of truth. After 18th May, any statements of truth that are received will be returned, with a request to replace them with the appropriate new form.
As a technologically adept firm, Tees welcome moves that help create a faster, simpler and more streamlined process for the benefit of our clients.
If you need any advice on what to do if someone you know has passed away, then please be assured we are open and here to help and guide you as normal.