A socially-distanced will?
IWANT TO get my affairs in order,” is the phrase we have heard the most from clients since lockdown began — from will writing through to noncontentious and contentious probate matters. Most people assume this means ensuring they have an up-to-date will, which of course is very important. However, it is also essential to consider who will look after your financial or healthcare matters should you become ill.
The law surrounding the execution of a will dates from 1837 and may seem archaic and impractical in the current situation. The law states a will must be in writing and must be signed by the person making the will (the “testator”) in the presence of two independent witnesses, who should then also sign the will in the presence of the testator.
The requirement for all three people to be present at the same time while social distancing is particularly difficult, especially if the testator is in quarantine and unable to ask witnesses to be in the same room. The meaning of “presence” is more significant than ever and there has been talk in the legal press as to whether wills can be witnessed by Skype, for instance. Unfortunately this doesn’t appear to be possible, due to the strict requirements detailed above, so what can be done?
The important point is that witnesses must be present and this can be accomplished in various ways. The will could be signed in an open area such as a garden or park, or perhaps even over the garden fence. More old case law from 1781 states that as long as the will was signed “in the line of sight” of the testator and witnesses, even if from another room and through a window, it was valid. This point was upheld as good law in 2011, when a power of attorney was witnessed from another room separated by a glass door.
When a client makes a will with us in the current situation, we are also offering the opportunity to have their will re-executed in our office after the lockdown has ended.
Some may also wish to consider Lasting Powers of Attorney (LPAs) — legal documents that give your chosen attorney the legal authority to make decisions for you (“the donor”) if you cannot do so yourself. They take two forms — one for property and financial matters; another for health and welfare. LPAs are particularly helpful for the elderly and vulnerable, as they may struggle to manage their own financial matters or make decisions about healthcare. It is currently challenging to take instructions from someone who is isolating or in a care home. But it can be done — discussions can be held by phone or a video conference. At Osbornes Law we continue to post documents to the donor for signature. The main issue is the need for a “certificate provider” — someone who can certify the donor has the mental capacity to sign the LPA — but we could discuss with the care home, carer, doctor or nurse how to overcome this. It is also possible for an independent person who has known the donor for longer than two years to act in this role.
While LPAs are a great tool to help the elderly and vulnerable, they can also be useful when temporarily incapacitated, for example if you are in hospital or not well enough to look after your own financial or healthcare matters. You may consider putting an LPA in place now, even if you think it may not be needed for some time.
The pandemic has impacted on people in different ways and for many, it has given time for reflection on family matters and consideration of what may lie ahead. Getting life plans in place has never been more important and, from what our clients tell us, results in peace of mind.
Jan Atkinson is head of wills, probate and estate administration at Osbornes Law, a registered trust and estate practitioner (TEP) and contentious trust and probate specialist (CTAPS). She is listed in several leading legal directories as a leading practitioner with extensive experience in national and international private client matters, 020 7485 8811, enquiries@osborneslaw.com, osborneslaw.com