Solicitors and other professions such as wealth management companies in the UK have seen a significant increase in the number of people seeking to make or update their Wills during the coronavirus pandemic.
The reasons behind the increase can be attributed in part to people being confronted with their own mortality during the pandemic and also having more time to put their affairs in the order given the lockdown.
In addition, there has been an increase in instructions to create powers of attorney (especially amongst the elderly) so that financial and welfare matters can be managed if individuals do succumb to the virus, or indeed any severe illness or accident, and have to be hospitalised.
Solicitors’ practices have had to look to change their working practices to cope with restrictions such as social-distancing rules. Some countries, including Australia and the USA, have passed emergency legislation to make it easier for Wills to be made during COVID-19; the Law Society of Scotland recently published new guidance for solicitors and, amongst other things, it has cleared Scottish lawyers to use video conferencing technology if clients are self-isolating.
In England and Wales, however, there are no such changes. The legislation governing Will-making, the Wills Act 1837 (‘the Act’), predates any relevant contemporary technology. The Ministry of Justice is in discussions with the Law Society of England and Wales over legislation that would relax the rules around the witnessing of Wills and possibly allow for electronic signatures, but the current guidance is that Wills witnessed by video conference are not valid as physical presence is required by the Act. The government has confirmed that whilst the case for reforming the law is currently under review, any review must take into consideration the need to protect particularly elderly and vulnerable people against undue influence and fraud.
Notwithstanding, solicitors have said there is no doubt that Wills (both ‘home made’ and professionally drafted) have been drawn up and witnessed via webcam during lockdown. There are potential problems with drafting, and attempting to witness wills over webcam and then getting people to sign the papers after lockdown. What if the person dies in the meantime, or suffers some kind of debilitating condition?
Questions around witnesses’ line of sight could also be raised as a result of social distancing measures. For example, can a Will be witnessed through a window or over a wall? It is possible, as long as the legal requirements are followed to the letter. These include a provision that the witnesses should maintain an uninterrupted line of sight the whole time that the Will is signed. Signing and passing the document over a wall to a witness to record they have witnessed a signature, if they have not actually seen the document being signed, does not count and would result in an invalid Will.
It also seems inevitable that some people will have made a Will in a rush and, in doing so, will not have considered possible claims on the Will and moral duties to dependents as they should have done. No doubt attention will turn to the lawyers for allegedly not ensuring that such problems were addressed.
A frequent error, especially with ‘home made’ Wills, is choosing the wrong type of witness. The Act prohibits witnesses from being beneficiaries of a Will. It is unlikely that if a person is isolating, the people they are sharing a house with (most likely to be family members and potential beneficiaries) will be appropriate choices. It may be difficult to obtain the co-operation of independent witnesses (neighbours / friends) who are, or have been anxious about being in close proximity to others during the pandemic. It's a tough conundrum and very important to be clear on what you can and cannot do.
There could be a significant rise in contentious probate matters. It is likely that there will be some cases of claims against Wills solely because they were made during COVID-19, with potentially disappointed beneficiaries simply claiming that the Will was made over webcam or witnessed incorrectly. These claims would try to pass the burden of proving the Will is valid onto those relying on it.
Whilst there may be more ‘immediate’ claims brought as a result of the pandemic, practitioners and their Professional Indemnity Insurers should be aware of the potential increase in contentious probate claims, waiting in the wings.
Professionals often have to wait until the initial dispute on validity is over and for their potential problem to crystallise. Often partners at law firms are dragged into disputes as executors. Probate disputes always threaten to diminish the estate due to the kind of costs orders incur – leading to claims against lawyers that the estate would not have been diminished had there be no ambiguity or problem to argue over.
It is a good investment to get experienced professional indemnity lawyers involved behind the professional making sure disputes are resolved in a way that protects them, guiding them through a difficult maze of professional obligations and not allowing the parties emotional investment in such disputes to make matters worse.
The situation is rapidly changing as the government has recently announced an overhaul of probate legislation in the wake of COVID-19. A statutory instrument allowing Wills to be witnessed remotely in England and Wales will be laid in September. The reforms will allow testators' signatures to be witnessed using video conferencing software, such as Zoom, Facetime and Skype and once a Will has been signed by the testator it can be posted to witnesses, who sign it themselves during live-action web conferences.
The new rules will be backdated to 31 January 2020, meaning any Will witnessed by video technology from that date onwards will be legally accepted. There may still be challenges regarding the quality of the sound and video and whether they were sufficient for the parties to see and hear what was happening at the time.
The Ministry of Justice has said that the statutory instrument will remain in place until 31 January 2022, or as long as deemed necessary, after which Wills must return to being made with witnesses who are physically present. This is not, therefore, a permanent solution as it stands.
The government has also said the use of video technology should remain a last resort.
Whilst the new legislation may remove one area of challenge in relation to the validity of a Will (whether it was drafted / witnessed using video technology at all), it still remains an issue as to whether the Will was witnessed properly - was the sound / video sufficient to allow that?
Concerns have also been raised by practitioners that the process will be open to abuse. How are the witnesses to know that, just out of camera shot, there is not someone putting pressure on the testator to sign?
Whilst the updated legislation will bring England and Wales in line with Scotland and other countries (USA / Australia), there remains the possibility of an increase in claims and solicitors and their professional indemnity Insurers should beware.
To discuss this rapidly evolving situation, please contact Gordon Walker, Head of Professional Indemnity and Financial Risks. Crawford Legal Services in the UK – firstname.lastname@example.org.