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Is your Will valid? Will disputes are increasing!

“It was so important to get it right” – how local law firm Brethertons LLP kept “business as usual” for clients desperate to update their Wills in lockdown.

Back in March 2020, as Covid-19 was taking hold across the UK and deaths were rising, many people’s thoughts turned to putting their affairs in order in case the worst happened. Law firms and Will writers across the country had a huge influx of enquiries for people wanting to update their Wills or make one for the first time.

Brethertons LLP, which offers a wide range of services including Will writing, like other law firms, was forced to close its offices during the first lockdown but early preparation meant that the firm was easily able to move most of its services online and remote. Solicitors dealing with Wills fell within the class of “key workers” set out by the Government and so the team, supported by paralegals and legal assistants, continued to travel for their essential work to provide this vital service to give their clients peace of mind.

Signing a Will became difficult during the lockdown, with strict travel restrictions and social distancing in place. One solicitor in the Banbury office conducted a Will signing on the bonnet of a car (using the windscreen wipers to hold the document in place) and another solicitor based in Rugby visited a client at home and witnessed the signing through the living room window. One of the solicitors in Bicester took her husband to act as the second witness to the Will to ensure that the signing was not delayed.

This, of course, is reflective of what solicitors across the country experienced.

Brethertons took the decision early on in the first lockdown to continue “business as usual”, with solicitors travelling to clients’ homes or meeting in the office car parks to get Wills signed. Emma Stewart, Partner in the Wills, Trusts and Probate team said “we didn’t want to reduce our level of service because of the pandemic. It was important to everyone in the team that our clients had Wills that reflected their wishes and would help protect against any potential claims being brought against their estates. We simply could not take the risk of remote witnessing going wrong, leading to an invalid Will and meaning that our clients’ last wishes, made in a dangerous and uncertain time, would not be honoured.”

The Government also brought in a retrospective law titled “The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020” which legalised the remote witnessing of Wills. The legislation, which came into force on 28th September 2020, ensures that any Wills remotely witnessed from 31st January 2020, the date of the first confirmed coronavirus case in the UK, would be valid provided the other formalities for executing a Will were complied with.

Whilst intended to make things easier, the new law caused headaches for all professionals dealing with Wills. Guidance released by the Law Society on how to effectively remotely witness a Will meant that the process was more laborious and complex than the simple social distancing that practitioners had been doing for the previous 6 months.

At Brethertons, the decision was made that remote witnessing carried a substantial risk that Wills would not be executed correctly and so the firm continued to serve its customers in person with the additional safeguards in place. The firm is immensely proud of its ability to continue with “business as usual” during the most unprecedented circumstances for a generation.

Linda Jones, Partner and Director of Legal Services for Private Client, said “The Team here at Brethertons demonstrated unparalleled levels of professionalism and Client care during the lockdown periods.  It would have been so easy to let high standards slip during such unprecedented times but they remained clearly focused on what was need to protect our Clients interests in the future.”

 

What is the legacy left behind by Covid Wills?

Whilst Brethertons strived to ensure that all Wills were valid and accurately reflected their clients’ wishes, the team are also seeing problems with other Wills executed during the pandemic – and particularly where there was no professional involved with the drafting or execution.

Examples of problems that the solicitors at Brethertons have seen include:

  • Signing a Will in pencil
  • The witnesses signing the Will, but not the deceased themselves
  • Wills that don’t fully express the deceased’s wishes, so part of the estate is distributed in accordance with the law rather than what the deceased wanted
  • Conflicting execution dates appearing on the Will
  • 2 identical Wills executed one after the other
  • A badly worded clause which could have made the gift fail
  • A beneficiary of the Will witnessing the signing of the Will

Often these issues are not spotted until it is too late and the person has passed away.

Finding out that there is a problem with a Will causes additional stress to the loved ones left behind and means that they are more likely to need expert legal advice to deal with the estate.

Sarah Horton, Partner in the Wills, Trusts and Probate team said “it is always difficult telling families that their loved one’s Will is not valid, or finding out further down the line that something is not quite right. Specialist solicitors, like those at Brethertons, can advise on the best way to proceed but unfortunately that doesn’t always reflect what the Will said or what the deceased wanted. Dying without a Will, or with an old Will still in place, leaves loved ones with a legacy of time, money and stress to sort everything out. I don’t know anyone who would want to leave their family to deal with that when they die.”

 

What to do if you are worried about a Covid Will?

If you have concerns about your own Will, you could seek independent legal advice about what your Will does and whether it is valid. If you have concerns about your Will based on what the advisor says, you can seek to prepare a new Will which should rectify the problems.

If you are worried about the Will of someone who has already passed away, there are a number of options available to you dependent on what your concerns are. Some of the most common concerns include:

  • The deceased did not have capacity when they signed their Will
  • The deceased was pressured into preparing their Will in a particular way, or pressured into signing it
  • The deceased didn’t leave a gift for someone who feels that they should have received something
  • The Will, or one or more of the gifts in it, is invalid

Many people are reluctant to seek legal advice, but challenging a Will is complex and there is a very short window of time in which you can commence investigations and begin Court proceedings if required. If you miss the time limit for applying to the Court then you may lose the opportunity to bring your case at all.

David Richards, Partner in the Dispute Resolution team, said “clients come to me with a variety of concerns, from not being included in a Will to doubting the deceased’s capacity to understand and execute the Will. The problems with Wills executed in lockdown are now starting to come through, and this means many more upset family members and friends who are seeking to bring a claim. Litigation is difficult and emotionally draining, so I would advise anyone looking to contest a Will to get expert legal advice to make sure that nothing is missed.”

At Brethertons we have expert lawyers who can help with both challenging a Will and dealing with estates where a challenge is expected or already at Court. Brethertons is ranked in the independent Legal 500 and Chambers and Partners directories annually and trusted by hundreds of clients every year. Notably, all of the solicitors dealing with Wills and probate at Brethertons are at least affiliate members of the Society of Trust and Estate Practitioners (STEP), arguably the most highly regarded probate accreditation in the world, with over half of our solicitors having full TEP status.

If you would like any assistance with preparing your Will or with investigating concerns about a loved one’s Will, please contact Brethertons:

  • Banbury: 01295 270999
  • Bicester: 01869 252161
  • Rugby: 01788 579579