We’re all worried by the current world health situation.
Many of us have more time on our hands than we’re used to and our thoughts will be on the need to look after ourselves, as well as protecting those around us.
This includes assessing our personal affairs and deciding whether we need to review an existing Will or make a Will for the first time.
You might decide to go to a solicitor to get your Will done.
If you go to a solicitor to make your Will, you can expect that you will have at least one face-to-face meeting with them.
This is for several reasons, including:
• It allows your solicitor to check that you have legal capacity – that you understand the implications of making a Will.
• It allows the solicitor to take your instructions comprehensively and get on with drafting the Will for your approval as soon as possible – no one wants to delay finalising a Will longer than necessary.
• It minimises the risk of misunderstandings as to what your wishes are with regard to your property and estate.
• It enables your solicitor to check that there is no other person obviously exercising influence over you – and how and why you have decided to distribute your estate in this way (which can leave a Will open to challenge later).
The face-to-face meeting is not just a ‘good idea’.
It’s pretty much a professional requirement. Your solicitor has to meet you in person in order to be seen to be acting with your best interests in mind.
In many cases, your solicitor will meet you at least twice:
• Firstly, to get your instructions for the Will; and
• Secondly, at the point when you sign your Will.
Current public health restrictions prevent solicitors from meeting their clients face to face.
Is it possible to get round the problem of solicitors not being able to meet their clients and still make a valid Will with the help of a solicitor?
Yes, it is, though the lack of a face-to-face option makes things a bit more complicated.
The Law Society of Scotland has issued temporary guidance (“the Guidance”) on this, among other things. It will probably be revoked as soon as social distancing restrictions are relaxed.
The Guidance looks at two different types of scenario.
(1) The first situation is where the solicitor was able to get in-person instructions from the client before the introduction of social distancing restrictions. In other words, this part of the Guidance relates to the signing or ‘end’ stage of the Will.
In that case, the solicitor has had a reliable opportunity to assess that your legal capacity is sound and to check that there does not appear to be any undue influence on you by – or circumvention of you by – a third party (usually, but not always, a close relative).
Though the solicitor cannot be personally present to oversee the completion of the Will, they can give you instructions about signing and witnessing it, which should be good enough to ensure the end product you return to your solicitor is legally valid.
That’s fine if a suitable person can be with you to witness your signature.
But what if you are on your own?
A video link may provide the solution. Current possible options include applications such as Zoom, Skype and FaceTime.
The Guidance confirms that the solicitor can witness you signing each page of the Will by seeing you do it on the live video. You then send the Will back to your solicitor and they can then validly sign as the witness because they actually saw you sign each page in real time, albeit via video link.
What if you are on your own, with no video facilities available?
Here, an imperfect though legally valid solution is available.
Your signature at the end of the Will, on its own, will make it a lawful Will.
The three fundamentals for you making a Will in Scotland are:
- You have legal capacity;
- The document is clearly intended to be a Will (use of words like “leave”, “estate”, “bequeath” and “residue” help here); and
- The document is signed by you at the end (it is “subscribed”).
The drawback of a Will that has not been witnessed is that it does not ‘prove’ itself as valid. If that is the Will you have in place at the time of your death, it will have to be “set up” as part of the Confirmation (the English legal term, “Probate”, may be more familiar to you) process, by providing a sworn statement from a witness who knows it to be your signature on the Will.
For that reason, a Will that is signed only by you and not also by a witness is best seen as a necessary stop-gap measure. It would be advisable to replace a Will in that format by a properly witnessed Will once the current social conditions end.
So, that’s us looked at situations where your solicitor had your Will instructions before social distancing restrictions came in and the difficulties which relate to how you sign the Will validly when you cannot meet your solicitor in person to do that. Now, we move on to look at how things might be workable if you’re only deciding post-social-distancing that you need a Will.
(2) The second situation is where you, as the client, consult your solicitor about a Will after the social distancing measures came into force.
If you are an existing client of the solicitor and provide instructions in writing to your solicitor, those instructions can be acted upon. The Guidance recommends that confirmation of the instructions by video link or, at worst, by telephone, should take place. This goes back to the points above about undue influence and possible external pressure affecting the terms of the Will.
It’s more problematic, if you are a new client of the solicitor. With no track record of knowing you and your circumstances, it’s harder for the solicitor to be sure that you have legal capacity or that there is no other person in the background ‘pulling the strings’.
A meeting over video link is an option but the solicitor may refuse to accept instructions if, in their professional judgement, it’s not sufficiently clear that you understand the implications of what you say you want to do or that the instructions are truly coming from you and not someone else.
If you are a new client of the solicitors’ firm you consult, identity checks are required under the money laundering regulations. If you’re at a remote location, holding up the documents for the solicitor to see via video conferencing is acceptable. The solicitor can screenshot the image they see, as evidence of the process. A better alternative is for you, as client, to scan and send in the ID documents in question.
Unfortunately, there is a limit to what your solicitor can do.
The rules do not bend to the extent that a solicitor can just take your Will instructions over the phone and send you out the Will for signature. The need for checks on identity, legal capacity and no third party twisting your arm make that impossible.
Having no possibility of visual contact with a solicitor does not mean your situation is hopeless in terms of making a Will, but it is more risky.
You can write out clearly your own Will. Signing the document alone, at the bottom of the other writing, while not the ideal option, will generally create a valid Will.
Assuming you have legal capacity to make a Will, if you write on a piece of paper ‘I leave my whole estate to my wife’ and sign below, it will be a Will. The words ‘leave’ and ‘estate’ show you intend it to be a Will.
To make the Will “self-proving” (as discussed above),
• you should sign at the end of the deed and at the foot of each page (if there is more than one page);
• this should take place before a single witness (who does not have to know what the contents are about), who should sign on the last page, after your signature; and
• you should add the date and place (town) of signature and the witness’s full name and address.
Note that the witness should be over 16 years old, have capacity and not be a beneficiary of the Will.
Over the years, homemade Wills have generated a lot of business for court solicitors.
So we don’t encourage their use generally. The kinds of disputes that arise (as you may have guessed by now) relate to things like the legal capacity of the Will maker and undue influence by close relatives who have gained “unfairly” from the provisions of the Will.
On the other hand, we have exceptional circumstances at the moment.
While this article should not be viewed as “legal advice”, we hope you can see that, in such an extreme situation, you may be better to do-it-yourself than have nothing in place at all.
Even under lockdown conditions, you should not assume that making a Will with the help of a solicitor is impossible.
Modern technology and the internet, coupled with versatile Apps such as Zoom, mean that options are available, whether you’re already at the stage of signing your new Will or just beginning the process of Will-making.
In an emergency, you can consider a DIY Will, though it’s important to view that as a temporary solution and something you should get proper advice about and “tidy up” as soon as possible.
How we can help
We have the technology to help you in the ways described above, when physical meetings are impossible.
Feel free to contact us to discuss your requirements and what options might be available. We’d be glad to help. All initial enquiries are free of charge and without obligation.