The impact of coronavirus (COVID-19) on Will making and alternative ways of making gifts

The impact of coronavirus (COVID-19) on Will making and alternative ways of making gifts

While coronavirus (COVID-19) has given the impetus to many to consider putting their affairs in order, the pandemic does present real challenges to Private Client solicitors in taking instructions for Wills and in their execution.

How are practitioners complying with both Wills Act 1837 (WA 1837), s 9 and social distancing?  What about WA 1837, s 15?

Section 9 of the Wills Act 1837 (WA 1837) provides that the signature must be witnessed or attested by two witnesses. WA 1837, s 15 disqualifies a witness, or their spouse, from benefit under a Will.

The requirement for two (non-beneficiary) witnesses is a challenge particularly for those who are elderly and/or vulnerable who need to self-isolate.

Wills can be witnessed by care staff (for example) in a care home or (if agreement can be obtained) by doctors/nurses in hospital depending on the ward (bearing in mind that many are now extremely busy).

Wills are being witnessed while respecting social distancing, by (for example) setting up tables in the front garden where Wills can be witnessed at a distance or by a testator sat in a car in a car park, with the Will passed through the window for signature by witnesses after execution. Line of sight is key and a clear barrier is no impediment, see Casson v Dade (1781) 28 ER 1010. It is ideal for each person to bring their own pen and hand sanitizer that can be used before and after execution.

Wills cannot be made by video or by electronic signature!

Is it felt that the risk of coronavirus (COVID-19) is preventing people making Wills?

There is a risk, but where solicitors have been instructed every effort is being made to facilitate Will execution properly. According to the Law Society’s Ian Bond, enquiries for Wills are up 30%. What is likely to be a greater risk is people drafting their own Wills and failing to comply with WA 1837, using beneficiaries as witnesses thereby defeating their intention, or creating ambiguous clauses which require judicial construction.

There is also a risk that it will be impossible to obtain mental capacity reports that one would normally obtain to comply with the so called ‘Golden Rule’ in the case of elderly or mentally somewhat infirm testators. Some capacity experts are offering such a capacity assessment by video link. On the one hand this may inhibit the ability of the expert, on the other hand if the assessment is recorded and kept it will perhaps be much better evidence of the testator’s capacity than is capable of being recorded through an attendance note.

Note the requirement for a certificate provider makes the execution of Lasting Powers of Attorney more difficult to achieve, particularly where there is a question mark over capacity.

Are there any other effective means of an individual gifting their property?

One effective manner of dealing with cash is to transfer it into a joint bank account with the beneficiary. This may be able to be achieved relatively simply online.

Beneficiaries should consider whether they prefer the intestacy rules to their current Will because destruction of a Will does not require witnesses.

There is the possibility of death bed giving: either outright (by making a perfect gift, again possibly by bank transfer), or in contemplation of death by a donatio mortis causa, which will not take effect if the donor survives. The difficulty is that delivery is necessary to make a donatio mortis causa, at least symbolic delivery (eg by using car keys to make the gift of a car). The donee will need to be able to take delivery.

Note the author’s own past attempt to make a donatio mortis causa by text message of her wine interests before an orthopedic operation was almost certainly invalid.

It may also be possible for an elderly person to declare themselves trustee of certain property for the desired beneficiary.

However, all the options suggested above should be approached with considerable care.

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