Coronavirus - Wills and Estate Planning Considerations During the Pandemic

Last updated, 24th August, 3:00pm

In the last few weeks, life as we know it has changed beyond recognition. Coronavirus has taken hold in the UK and it has left many people scrambling to get their affairs in order. There has been an unprecedented surge in people taking steps to make a will or update their existing will. Private client practitioners are categorised as key workers, and they are busier than ever trying to meet the demand whilst at the same time ensuring their own safety and that of their clients.

Many solicitors, including this firm's Private Client team, have new procedures in place to comply with the social distancing guidelines. Face-to-face meetings when taking instructions for a will, and then executing a will are a thing of the past, for the time being at least.

What changes have been made to the will-making process? How will the advent of these rapid changes impact on the number of challenges being made to wills after a testator dies? Below we consider estate planning and making a will in the current pandemic, and how to minimise the risks of leaving a will open to challenge. Please also take a read of our article on the 5 most common misconceptions about Wills as we outline the trust behind them.

Time to think

These extraordinary times are a good prompt for the public to consider their wills and estate planning. Getting your affairs in order and planning for the future can provide your family and friends with a clear path forward during what will be a difficult time.

Currently you may be in isolation and have more time on your hands; perhaps consider sitting down and listing your assets. Think about how you would like your family to be looked after if you are not around. Even if you already have a will in place, think about how your life has changed since making it, and the possibility that it needs updating.

There may be opportunities to undertake some tax planning during this period of uncertainty. The current fall in the value of the stock market may allow gifts to be made with reduced capital gains tax being payable and potential inheritance tax savings. Back to the top

Myths and Misconceptions about Wills and the Laws of Intestacy

“Wills are only for the elderly to think about, I'm too young to have a will” No matter your age, or how little you think you may own, getting your affairs in order can help lift the burden off your family and friends in the event of an unexpected death. “I don't need to make a will, everything will go to my spouse anyway”.  This is a common misunderstanding. Although the laws of intestacy do in the first instance benefit a spouse, this is only up to an amount of £270,000. The remainder of the estate is divided in half between the spouse and any children of the deceased. “I have a common law marriage, everything will go to my partner”.

Many couples believe that if they have lived together for a number of years this automatically creates a 'common law marriage.' This concept is not legally recognised under English law and your partner is not protected in these circumstances. With many of us delaying marriage or deciding not to marry at all, it is extremely important to make a will to benefit your partner. Unmarried partners do not receive anything under the intestacy rules. If you do not have a will, in the absence of a surviving spouse or children, your estate would be divided between other family members. “Arranging a will is complicated and time-consuming” Making a will should be a relatively straightforward and quick process. Your initial conversation with your solicitor should establish the complexity of your estate, and a time-frame for preparing your will. 

Can I still execute a valid will during isolation?

Face-to-face client meetings are a thing of the past. Finding people to witness your will can prove tricky when you are self-isolating at home. Practitioners and clients are having to find ways around the limits placed on us in order to observe social distancing. When is a will valid? A will is valid and can be admitted to probate if:

• it is in writing and signed by the testator or by some other person in his presence and by his direction
• it appears that the testator intended by his signature to give effect to the will
• the signature is made or acknowledged by the testator in the presence of two or more witnesses who are present at the same time
• each witness either attests and signs the will or acknowledges his or her signature in the presence of the testator (but not necessarily in the presence of any other witness).

A testator must also have testamentary capacity to give instructions for their will, know and approve the contents of their will, and not have been unduly influenced into making the will. So what are the risks and what can be done to minimise the risk of challenge?

Testamentary capacity

Where instructions are given for a will via a telephone call or, more preferably, during a video call, the will drafter must satisfy themselves as to the identity of the testator and that the testator has testamentary capacity - things which are inherently easier to assess in a now prohibited face-to-face meeting. Ideally, a formal assessment of their capacity should be carried out before instructions are taken, otherwise there is a risk that a testator who lacks testamentary capacity gives instructions for a will which is subsequently executed and later challenged. If there is doubt as to testamentary capacity, consideration should be given as to whether it would be better for a previous will to stand or for assets to pass under the intestacy rules. This may be preferable to opening up the new will to challenge, with the possibility of it being declared invalid if the testator was found to have lacked testamentary capacity. The cost, time and emotional expense of a will challenge for family members could be saved, where there is a real risk of a will challenge based on lack of testamentary capacity, if the appropriate steps are taken.

Undue influence

When giving instructions via telephone or video call, a testator would be wise to ensure that no beneficiaries are present in the same room and that the testator is free from the undue influence of others. Should the validity of a will be challenged, the presence of a beneficiary can cast doubt on a testator's true wish to leave their estate as set out in the will and, subject to the evidence, it may result in a will being declared invalid.

Homemade wills

At the best of times, homemade wills often give rise to validity challenges and making one during a pandemic is no different. The usual will-making formalities still apply and these can be very easy to get wrong, despite a person's best intentions. To minimise the risk of challenge, and often significant legal costs associated with a later challenge, someone wishing to make a will should consider instructing a solicitor to prepare their will. If this is not feasible then every precaution should be taken to ensure a homemade will complies with the requisite legal formalities, that the testator is not lacking testamentary capacity, and is not being influenced by another.

Will execution

If a person is to receive a benefit under a will, they cannot act as a witness to the will and, in most cases, that excludes close family members acting as witnesses.  A testator who cannot leave their house or invite people into their house to be witnesses during the Coronavirus lockdown has to find an alternative method for their will to be witnessed.  Witnesses to a will must see the testator sign it, and the testator must see the witnesses sign the will. Case law suggests that the presence of the testators and witnesses must be physical. There is clear case authority, however, that indicates that line of sight through glass will suffice and so it is possible for a will to be signed and witnessed while the testator and witnesses are at each side of a window.

Modern technology

The Law Society in Scotland has recently relaxed the rules so that a solicitor can witness a client signing each page of their will over video link. The will can then be returned to the solicitor who can then witness the will, and this is seen as a continuous process which produces a valid will. The government in England have followed suit and have announced that temporary legislation will be introduced in September 2020 making video-witnessed wills legal during the Coronavirus pandemic. This law will also be backdated to apply to any Wills and Codicils made since 31 January 2020.A final note of caution. It is important to remember that this is only a temporary change to the law and must be used as a last resort only. Please take a read of our article here for further information on the temporary legislation and how to minimise the risk of a challenge to a will executed remotely.

Wills must comply with all of the above requirements even during the pandemic. In these extraordinary times, ensuring that the requirements are met can be challenging. Testators will need to be more careful than ever to meet the requirements for a validly executed will and should, where possible, seek professional advice.  For more information on related issues,  please see our update on Wills, Lasting Powers of Attorney and Estate Planning.

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.