AdminLPAsWillsCOVID-19 and Will Writing: Updated Guidance

You might be aware of the Society of Will Writers latest guidance relating to Covid-19 and the current lockdown that was issued on Friday 22 January. This was that the Ministry of Justice have confirmed that will writers are not included as critical workers.

During the current lockdown we fully support the Society of Will Writers advice that all members should, where possible, continue to work from home, conduct appointments remotely and only go to work, whether this be at your office or visiting a client’s home, where absolutely necessary in order to protect yourselves and also the clients.

All steps of the will preparation process can now be carried out remotely following changes in legislation last year.

The government guidance is clear in that there are still circumstances in which you are allowed to meet others outside of your household. These include for work reasons, where it is unreasonable to do so from home and this can, where necessary, include working in other people’s homes.

There could be circumstances where you will not have an option other than to have to meet clients in their own homes. For example, the clients are elderly, the clients are unable to use technology or you need to carry out your own capacity assessment in person. You should use your own discretion whether you feel that it is necessary to see clients in person and look at all the options available with regards to dealing with matters remotely.

Where clients are required to be visited in person, the government guidance on working in other people’s homes should be followed (https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/homes) along with WillPack’s own guidance for taking instructions.

When taking instructions remotely

• As with all cases you must ensure that you carry out the relevant capacity checks before proceeding with taking the instructions and that this should be recorded on the instruction form.
• Consider putting provisions in place for the use of Skype or WhatsApp video calling – both are free services; this will enable you to confirm that the client is who they say they are. Where this is not possible, for example you are taking the instructions by telephone, you will need to be assured that you are speaking to the testator.
• Take into account undue influence. Record any other persons who may be present whilst taking the instructions – ask the client this question and record it on the instruction form.
• Ensure steps are in place to check the clients ID to prevent impersonation of the testator. Request that copies are sent to you by secure means.
• Give consideration to the clients completing a basic questionnaire prior to the instruction taking call as this will enable you to check the facts.
• When taking instructions for a couple, ensure you speak to both clients to ensure that the instructions are the wishes of both.
• Use the information leaflets which are available on the Partner area of WillPack’s website to ensure that the clients are properly informed and understanding, particularly where trusts are involved.
• Also check to ensure that your terms of business reflect the way you are working.
• Use secure software such as WeTransfer when sending personally identifiable information to clients; or use the post.
• Ensure the testator signs the instruction form in ink which is always the preferred option or at the very least include a disclaimer on the instruction form for an electronic signature to be used with the reason for its use.
• You may also wish to provide a disclaimer for clients to sign to state that you are proceeding based on information the client has provided remotely and that you recommend both parties revisit the case when restrictions are lifted. This enables you to check that they have correctly attested their wills and also offers an opportunity to review the case in person. This is especially useful where the clients wish to have a basic will in place immediately but have more complex needs that a proper, in depth, consultation will help to resolve. WillPack Partners can find a template disclaimer in the Partner Area of our website.

Attestation of Wills

There are several different options that could be considered for attesting of wills.

Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 came into force on 28 September 2020 which has temporarily amended the Wills Act 1837 to allow wills to be witnessed remotely via video-link. This temporary change in the law will remain in force until 31 January 2022 although this may be shortened or extended if deemed necessary. Guidance on how remote witnessing can be achieved along with our advice can be found here.

WillPack, along with the government themselves and professional bodies such as STEP, strongly recommend that remote witnessing only be considered as a last resort when physically signing the will is not possible. Our advice would be that witnessing a will whilst following social distancing should be considered. This could include:

• Witnessing through a window, relying on the case of Casson v Dade from 1781. This could be a window of a house or perhaps a car.
• Witnessing through an open door, either by standing outside or in an adjacent room.
• Witnessing from a short distance down a corridor.
• Witnessing outdoors from a short distance. We have heard from some WillPack Partners who will bring a portable table to make the signing process easier.

Care must be taken to ensure that the witnesses and testator have a clear line of sight of each other during the signing of the will.

Where the will writer is not a witness to the will itself and the testators will be organising the signing of the will themselves, you should ensure that:

• Full attestation instructions are provided in a covering letter, along with a copy of WillPack’s ‘Signing your Will’ guidance leaflet.
• A procedure is put in place for monitoring the attestation of the will and that this has been completed correctly – request that a copy of the Will is sent back to you or that a photo of the attestation page is taken, for checking and this will then provide you peace of mind. If the clients do not have a scanner, they could use their mobile phone to take photos of the document.
• You may wish to consider offering to oversee the signing remotely via video-link whilst not acting a witness yourself.
• Consider using software such as WeTransfer to enable information to be sent to the clients securely; or use post.
• Ask the testator/witnesses to complete the Remote Attestation forms and ensure that the original is returned to you and then forward these onto us at WillPack.

Signing Lasting Powers of Attorney

Whilst the law has been changed to allow wills to be witnessed remotely, unfortunately this is not the case for Lasting Powers of Attorney (LPAs). These must still be witnessed physically.

The same advice as above on socially distanced witnessing and remote witnessing as detailed above would apply here.

LPAs also have an added difficulty that they must be signed by multiple parties, the donor, the certificate provider, the attorneys and witnesses. It was previously advisable to have all parties gather in the same place to sign on the same day, which will be no longer possible in many cases without breaching social distancing rules where attorneys are from multiple households. An LPA would likely need to be carefully transported from party to party.

We are experiencing delays in receiving registered LPAs from the Office of the Public Guardian (OPG) currently due to their own delays and Royal Mail delays. At the time of writing we are finding that it is taking between 4 ½ and 5 months between sending LPAs to the OPG and receiving the registered LPAs.

Due to time delays and difficulties in signing LPAs, clients may wish to consider a General Power of Attorney as a temporary measure. Further information on this can be found here.

Guidance when seeing clients in person

Whilst the outbreak of COVID-19 continues, if you do need to visit clients in person/or they visit your place of work, our advice relating to this is as follows:

• Prior to visiting the client, check that they are not displaying any symptoms of COVID-19 or if they are self-isolating (or any other member of the household). Many clients will be aware of the situation so will not be offended as several firms are following this principle and will expect that you will be doing the same and not visiting clients should the same apply.
• Ensure that a strict hygiene routine is maintained, carry hand sanitisers and wash hands regularly.
• If clients will be visiting you in your office, display signs with regards to hand washing and ensure clients are aware that facilities/sanitisers are available.
• Separate pens should be made available for clients to use, rather than yours – a main source for transposing infection.
• Avoid shaking hands – most people are aware of the current situation and the reasons why.
• Try to maintain some distance between you and the client throughout the meeting.