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24 April 2020

Covid-19, Wills, Trusts and Probate: a legal update

5 mins

The Coronavirus (COVID-19) pandemic poses a variety of challenges for a variety of private client matters, such as execution of wills, the probate process and any claims under the Inheritance (Provision for Family and Dependents) Act 1975.

There has been legislative changes in a few of these problematic areas which has provided some clarity, but other parts are lagging behind and must be kept on top of by solicitors.

Will drafting and execution

The Wills Act 1837 requires that in order for a Will to be valid it must be in writing, signed by the testator (the individual writing the will) or by some other person in their presence and by their direction, and the signature is witnessed in the presence of two or more witnesses at the same time.

Although the Law Commission has recently discussed electronic signatures in respect of documents, Wills are specifically excluded from this consultation and an entirely separate paper is being undertaken to discuss this. We await a final report.

Provisionally the Law Commission have concluded that there should not be electronic signature of Wills. Therefore, at this stage there has been no relaxation to the requirements for a Will to be formally executed. However, the position may change depending on the duration of the pandemic.

During the pandemic, many people are having to self-isolate and therefore finding two individuals to witness your Will may prove to be quite tricky. Presence of witnesses includes both physical and mental presence. It is not necessary that the testator should actually see the witnesses sign, it is sufficient if the testator might have seen them sign if they had cared to look.

The witnesses may be in an adjoining room, but the witnessing will only be valid if it takes place in the part of the room which is visible by the testator. Therefore, this suggests that as long as the testator is actually able to witness the signatures then this should satisfy the requirement that two witnesses be present. This could be done through witnesses from outside looking through a window at the testator.

Witnessing by video calls is not possible as it means there is no physical presence of the witness.

The Probate Process

Following the death of a loved one, the probate process can be quite lengthily and under the current circumstances some tasks can face complications.

The Inheritance Tax forms and statements of truth as part of probate applications still require signatures. However, solicitors are now authorised to sign on behalf of clients and there is nothing in the provisions that prohibits the use of electronic signatures as long as they are in line with the regulations.

The immediate steps following death are difficult enough to deal with without the potential of the deceased family being house-bound due to Coronavirus. The Coronavirus Act 2020 facilitates registering a death and arranging a funeral in the current lock down. Special measures to cover those who are able to register the death with the registrar and arranging the funeral have been put in place. The Act also contains provisions to deal with the situation where no medical professional is able to sign the death certificate.

It is very likely that there will be delays in funerals taking place during the pandemic and the deceased’s family may wish to delay the funeral if they need to self-isolate.

For a personal representative (the individual who is responsible for administering the deceased’s estate) who is house-bound, their immediate concerns may be to secure and safeguard the estate assets such securing a property. Even in a lockdown scenario, securing a property is likely to be categorised as an essential activity.

Where it is necessary to obtain valuations of the deceased’s property (such as chattels) it may be more difficult to obtain professional valuations and estimations may suffice initially.

Contentious Trusts and Estates

With a sixth month post grant of probate time limit in place to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) everyone has concerns as to the courts discretion. An application following the six month expiration can only be made with the permission of the court, this is often timely and expensive.

The main concern is being able to engage with the other side under these current circumstances, potentially due to self-isolation or illness. In these circumstances your solicitor should advise you to issue ‘protective’ proceedings but this has a 4 month time bar and there are a variety of options to consider.

If it is not possible to obtain the client’s physical signature to a statement of truth because they have fallen ill with COVID-19 this can be provided electronically.

In times of a pandemic with a limited amount of guidance as to the potential legal impact, we must follow what little information we have been provided with. For further guidance please do not hesitate to get in touch with one solicitors who can advise you further in such unprecedented times.

This blog was written by Esme Sheridan, Paralegal – Wills, Trusts and Estates team.

If you would like to discuss any of the issues above with our Wills, Trusts and Estates solicitors, please do not hesitate to get in touch.

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