17 April 2020 by

Wills in the world in which we find ourselves… what should you do?

The press has been awash with many stories about the increase in demand for Wills since the onset of COVID-19.

This note addresses the following:

  1. The logistics of executing (or signing) your Will where you are avoiding contact with others;
  2. Whether you actually need a Will (and examples of common misconceptions about what happens if you die without one);
  3. What options are available with regard to making a Will; and
  4. The potential for Will challenges, where a professional is not instructed.

The aim of this note is to explain that you can still make a Will and that it would be sensible (if you have time) to enter into one which fully addresses your affairs and which will still be relevant and appropriate in the years to come.

The Logistics

It has emerged that, due to the virus, people are struggling to execute a Will, once it has been prepared.

In order for a Will to be valid, it must be executed as follows:

  • by or on behalf of the person making the Will (the “testator”);
  • in the presence of two independent witnesses (who must not be beneficiaries under the Will, or their spouse/civil partner, otherwise they will forfeit their entitlement); and
  • the witnesses must then sign the Will, or acknowledge their own signature, in the presence of the testator.

Clearly there are logistical problems with observing the Government’s current ‘two metre rule’, whilst complying with these formalities.

However, this problem is not insurmountable.

I have, for example, advised clients to execute their Wills with a window between them and their witnesses, who must of course themselves keep their distance from one another.

The witnesses must have a line of sight of the testator signing the document (which the window will allow) and they can then sign the Will as witnesses once the testator has passed it through the window to them.

The use of each party’s own pen, and wearing gloves or using anti-bacterial gel before and after touching the Will, might also be sensible, as indeed is observing any other medical guidance issued by the appropriate authorities (i.e. not me!).

An alternative to the above window method is to place the Will on a table in the centre of you and the witnesses, i.e. with you standing in a triangle formation.  Each party can then step forward to sign the Will whilst the other retreats (similar to the above). I am aware that people are doing this in the driveway, with their neighbours acting as the witnesses.

The logistics should not stop you from finalising how you would like your estate to be distributed following your death.

If in doubt, ask your Will-writer if they have any practical suggestions.

Do I need a Will?

This question is not specific to the situation in which we find ourselves.

Where you are domiciled in England or Wales, and you die without a Will being in place, the rules of intestacy will apply to your estate. These rules of intestacy stipulate how your estate will be distributed.

It may – this being the operative word – be that a Will is not required as the rules of intestacy may achieve your wishes.

For example, if you:

  • are married with no children;
  • you and your spouse are both domiciled in England and Wales; and
  • do not have a Will in place

your entire English and Welsh estate is likely to pass to your surviving spouse. If this reflects your wishes, then you might not think it necessary to enter into a Will now.

However, it is better to put your wishes in a Will to evidence your intention and to ensure that, if your circumstances change, your wishes still stand.

If you have children, or your circumstances are different, your estate will not necessarily be distributed as above under the intestacy rules.  All assets jointly owned with your spouse/civil partner, as well as your personal possessions, will pass to them. However, where you hold assets in your sole name, the following rules will apply to those assets:

  • the first £270k of your estate will pass to your spouse/civil partner; and
  • what remains is then shared as follows:
    • 50% to your spouse/civil partner; and
    • 50% is split equally between your children (by way of ‘statutory trusts’ if at the time of death your children are under 18).

If you are unmarried, and:

  • hold property as tenants in common with that person (i.e. you and your co-habitee own a set percentage of a property); and
  • there is no Will in place which states that your co-habitee will inherit your share of the property

your family members (or even the Crown, where you have no family members) would become co-owners of the property with your surviving co-habitee.

If you:

  • are separated from your spouse/civil partner;
  • now have a new partner and family; and
  • die without a Will being in place,

then your registered spouse/civil partner (i.e. your former one) will be entitled under the rules of intestacy to a share of your estate, whereas your new partner would not (without first having to make a successful claim under the Inheritance (Provision for Family and Dependents) Act 1975 – see below).

The above examples are ones we come across frequently, all too often owing to people making the incorrect assumptions.

Although the parties who inherit under the rules of intestacy may be happy to forgo their inheritance, it is entirely possible that the matter will become contentious and the subject of a legal challenge.

What options are there for writing a Will?

The three main ways to make a Will:

  • write one yourself (ensuring it complies with the legal formalities, including those mentioned above);
  • use an online Will service/template; or
  • instruct a professional Will-writer, such as a solicitor,

and there is a place for each of the above.

Most people make a decision based on cost, often presuming that their requirements are straightforward and that they do not need to engage a professional.

Many of my clients say, when they sign their Wills, how happy they are to finally have peace of mind that their estate will pass in accordance with their wishes. The question is, do you need this peace of mind that the Will you have made accurately reflects your wishes, and there are no ‘gaps’?

If so, it would be better to engage a professional.

A professional’s value comes from the fact that they should:

  • not simply follow your instructions blindly;
  • ask you what it is you wish to achieve;
  • ask you for information about why you wish to structure your affairs in a certain way;
  • raise points which you may not have considered;
  • advise on the options available and, most importantly, the one which they see as most appropriate in light of the above.

If you simply want your estate to pass to your spouse, with the remainder to your children, that is relatively straightforward. As such you may either consider it not necessary to pay for advice or that paying to use a template from an online provider (for a small fee) is better suited to you.

However, what often appears to be straightforward is not.

The decision should not be made solely on cost; people engage us after they have already spent money on a service in which little to no advice was given.

A well drafted Will should stand the test of time: for example, if you have 2 children who do not yet have their own children, would you like – if a child predeceases you, and at that point they have their own family – for their share to pass to their sibling or to your grandchildren?

This is a simple point, which is often not addressed in Wills where advice is not given.

Many people have more time than previously to investigate the various options available.  You should use that time to research – and you should feel free to call us to discuss our Will service in more detail.

After all, it is often only when you speak with someone that you will be able to get a better understanding of the value they may offer, and indeed whether you consider that value worth the (potential) additional cost.  You may wish to read a previous article on the Top 5 negligence issues in Will writing.

The potential for Will challenge – should you consider using a professional will-writer?

Sadly, the number of Wills disputes rose in 2019.

The most common grounds for disputing Wills are that the testator:

  • did not have sufficient mental capacity to enter into the Will; or
  • made the Will because a third party was exerting pressure on them to do so (referred to as ‘undue influence’).

Where either of the above are proven, the Will does not take effect and either the testator’s former Will will be re-instated or the rules of intestacy will apply.

Unfortunately you cannot stop a claim from being brought but you can prepare your estate to rebut such a challenge.

A solicitor should always be alert as to whether the testator is showing signs of lacking the requisite mental capacity to enter into a Will. They should always (regardless of age or your health) ask exploratory questions and record their findings.

They should also exercise additional caution where it becomes apparent that there may be potential upset and therefore a challenge in the future. Common tell-tale signs of these are where a child:

  • is not a beneficiary under their parent’s Will; or
  • looks after their parent, often when the parent is reaching the point at which they are unable to do so independently, and another child receives less under the Will.

Where they have doubts about a client’s mental capacity, a solicitor may advise that it would be prudent to instruct a capacity assessment by a suitably qualified medical practitioner.

These assessments will usually also probe whether there is potential undue influence (as often it is the case that those who are losing mental capacity are more easily persuaded by others).

The solicitor may recommend that an assessment is carried out – even if they think the testator has capacity – if they think there is a high possibility of a future Will challenge.

This should of course be discussed first with the testator.

It is not possible to assess mental capacity or whether there is undue influence without there being some human interaction and I would advise that you exercise real caution when considering making a Will without taking professional advice, where you consider there might be a possibility of a challenge.

In the current circumstances, online – real time – interactive assessments via webcam are being utilised.  However, it is likely that these will be more vulnerable to a successful challenge than those which are carried out in the physical presence of the professional. This may be particularly so where challenges are brought on the grounds of undue influence, as the assessor will not be able to see what the testator sees (for example the person glaring at the testator from the other side of the computer).

We are currently having to do what is most practical in the circumstances and, for many, this will be engaging in an online assessment. Despite this, you may wish to consider meeting in person with the professional who can record/confirm their findings when the lockdown is over.

If you would like to discuss any matters raised, please contact someone from our Wealth and Estate Planning team.

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