Can I make a Will during Lockdown?

The restrictions imposed as a result of the lockdown have been unprecedented and, due to social distancing, the provision of legal services have been significantly affected.

One area of law that has received recent exposure in the wider media, due to the effects of Covid-19, is that of making of a will.

Most of the coverage has concentrated on the difficulties of execution, due to the requirement that the will is executed in accordance with the 1837 Wills Act.

The Wills Act states that for the will to be valid it must be signed by the person making the will (“the testator”) and their signature must be witnessed by two people, in the presence of the testator and each other. The Wills Act also provides that a witness, or their spouse, cannot benefit from a will that they have witnessed.

Whilst some common law jurisdictions, such as the state of Queensland and New Zealand have relaxed the conditions by introducing emergency legislation so as to allow for execution by electronic means, the requirement for a physical presence still applies in this jurisdiction. This is despite petitioning of the government, for change, by the Law Society and the Society for Trust and Estate Practitioners.

Social distancing has meant that solicitors have had to be innovative to comply with the provision of the Wills Act and advice has been put out that wills can be executed through windows and in wide open spaces, where lines of sight can be maintained but physical contact can be avoided.

The formalities of will making must still be observed, regardless of the effects of  lockdown, as without a change in legislation, the court will not be able to depart from the current requirements, if asked to make judgement on whether a will has been validly executed.

What has not received the same level of coverage, are the other safeguarding measures that a solicitor will normally put in place to ensure that a will is not invalidated. Should it be the case that a will is challenged on the death of the testator, then an examination of how these measures have been implemented will be a key consideration.

  1. TESTAMENTARY CAPACITY

For a testator to give valid will instructions, they must retain testamentary capacity – the mental ability to make and understand a will.

The test for testamentary capacity was set down in the case of Bank -v- Goodfellow (1870), which outlined that to be deemed to be competent, the testator must:

  • understand the nature of the will and its effect;
  • have some idea of the content of their estate, which will be disposed of in the will;
  • have no delusion that would influence the making of a disposal that would not have been made with a sound mind.

Should a solicitor have any doubts about capacity then “the Golden Rule” dictates that the testator should be medically examined before the will is drafted.

In the event that a will is challenged, on the grounds of capacity, a solicitor’s contemporaneous consultation notes will be vital to prove that capacity was retained when the will instructions were given.

Solicitors will employ various methods to ensure capacity is retained and it may involve uncomfortable and lengthy conversations with the testator. It is hard to see how a solicitor could attest to the validity of the will, unless they know the testator well or unless the solicitor has been able to engage in a consultation, that is sufficient to allow for the solicitor to be satisfied that the Golden Rule has been applied.

Social distancing requirements have undoubtably posed challenges in respect of client engagement and given the current burden being placed on the NHS in the fight against Covid19, it may not be possible to locate a suitability qualified practitioner who would be able to perform a capacity assessment .

2. UNDUE INFLUENCE

At consultation, a solicitor will put safeguards in place to ensure that the testator is giving their instructions free from the undue influence. Undue Influence is the situation where a third party applies such an extreme influence over a testator that the testator makes a gift, which they would not have otherwise made, if they were acting of their own volition. Testamentary freedom allows a testator to leave gifts to whomever they choose, however a gift may be invalidated if it is proved that undue influence has been exerted.

It could also be the case that a testator has made a gift in their will that they would not have made save for pressure being applied by a third party. Pressure being applied, short of undue influence, even if proved, will generally not be enough for the gift to be set aside. The result being that the testator’s true wishes will not be observed, and someone will benefit against the wishes of the testator.

Again, it is difficult to see how a solicitor can ensure that undue influence is not being exerted, without having an adequate consultation with the testator. In normal circumstances this would mean a face to face consultation with the testator alone.

On a telephone consultation, a solicitor will not be able to see who is present with the testator and who may be influencing their instructions. In a consultation by electronic form, such as Zoom or Facetime, a solicitor will be unaware of any party who is out of the line of sight of the solicitor, but in the line of sight of the testator.

Direct evidence of undue influence is unusual and the bar for proving undue influence is set very high. It is however imperative that a solicitor carries out, and can be allowed to carry out, sufficient due diligence when will instructions are given. It is important to have a will but it is equally as important that the solicitor, who prepared the will, has been given good instructions.

It will ultimately be beneficial that the importance of having a will has been brought into the wider public conscience, as a result of the media attention arising out of Covid-19. Solicitors must however ensure that all safeguards that are normally put in place when taking will instructions, are not relaxed to the point that the solicitor cannot stand over a will that they have drafted or that the testator’s true wishes are not observed.

Should you need any advice regarding this topic please contact our Probate department by email at legal@mtb-law.co.uk