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The lockdown has presented significant obstacles to lawyers assisting their clients and a requirement to adapt quickly to different working practices to ensure client instructions can still be taken – this has included taking client instructions remotely through such means as telephone or video conference calls.
Lawyers are routinely aware of the risk that a client may not possess the necessary mental capacity to make a Will, or could be acting under the influence of others about what instructions they are giving a solicitor. Whilst these issues can be fairly apparent during a face to face meeting they are not always as obvious when taking instructions remotely. These risks have led some lawyers to take a cautious approach during the lockdown and in some cases regrettably declining to act.
The added and significant obstacle to making a Will during the pandemic is observing the requirement that a Will must be signed in the presence of two independent witnesses. This strict legal requirement is enshrined in law dating back to 1837. Since the pandemic took hold extensive discussions have taken place between The Law Society and The Ministry of Justice about a temporary relaxation of this rule. Ultimately no changes were introduced on the basis that any change would expose the elderly and vulnerable to a greater risk of undue influence and fraud.
During the height of the pandemic various accounts came to light about how Wills were still being validly signed and witnessed whilst observing social distancing rules. Will signings over garden fences and through windows were common place with some reports of Wills being affixed behind the wipers on car windscreens with each party taking their turn to sign at distance from each other!
The easing of social distancing rules allowing up to six people to meet in an outdoor space enables us to meet with clients at their home in the privacy of their garden to oversee the signing of their Will. This is appropriate for those clients who are physically unable to attend our offices or simply feel more at ease staying at home due to the current pandemic. Our offices are also open by appointment only to get Wills signed. We are operating under strict conditions following a detailed risk assessment to ensure the safety of our staff and clients.
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This article was written by Matthew Edwards, Partner in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of June 2020.