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Partner and Head of Family Law, Rugby
In a previous blog ( click here to read) I discussed some of the things to be wary about when drafting your own Will or instructing a company to draft your Will on an “execution-only” basis, ie. without getting any legal advice.
But drafting your Will is only half of the story. You might have a perfectly drafted Will, but if it isn’t executed properly then the Will isn’t valid and you risk your estate being administered and distributed in line with the intestacy rules. These are a set of rules which dictate who can administer an estate and who is entitled to benefit, with no consideration for the deceased’s wishes
One of the biggest concerns for those involved with preparing Wills in lockdown is the requirement for a Will to be witnessed by 2 independent people. The person preparing the Will (called the “testator”) has to sign or acknowledge their signature in the presence of the 2 witnesses for the Will to be valid. In lockdown, when we were prevented from getting closer than 2 metres to those outside of our households, this proved quite difficult.
There have been some creative ways of getting Wills signed and witnessed correctly – here at Brethertons we had a number of outdoor and socially distanced signings, including one of our solicitors signing a Will on a car bonnet!
One question that has arisen is whether virtual witnessing is sufficient, for example the testator signing the Will on a Zoom video call with the 2 witnesses watching. The Government is now looking to change the law so that Wills witnessed in this way since 31st January 2020 will be valid, albeit there are stringent rules to follow to ensure the witnessing is legal.
Capacity and pressure
Another big risk that those making Wills in lockdown face is accusations regarding the circumstances of the Will preparation after the testator has passed away. When you make a Will with a solicitor, we keep detailed notes of all meetings and conversations to explain why you decided to make your Will in a certain way. We also check that you meet the legal conditions for capacity (which is not as simple as just knowing who you want to give your estate to), and to make sure that no-one is trying to influence or pressure you into drafting your Will in a certain way.
In lockdown, many people were isolating with close friends or family. There is therefore a risk that these people could put pressure on the testator to make certain gifts in their lockdown Will.
We are also now starting to hear about the longer-term effects on those who contracted Covid-19 and how in some cases it can affect their cognition such as causing “brain fog”. In the most serious cases this could constitute a loss of capacity for the purposes of making a Will, especially if coupled with the effects of isolation, bereavement or more general anxiety.
If you are in doubt about whether or not your lockdown Will is valid, or if you would like to make or change your Will following the easing of lockdown restrictions, you can contact Brethertons to make an appointment to speak to one of our lawyers on 01295 661556.