One perhaps unsurprising side-effect of the Covid-19 pandemic has been an upsurge of interest in wills and estate planning. However, the lockdown is constraining options.
Press reports have suggested that the increased interest in will writing has been particularly high among those in the older age brackets who are more vulnerable if they become infected.
At the best of times, a will is often left on the ‘to do’ list, rather like the tax return or fixing the next dental appointment. That procrastination helps explain why it is reckoned that more than half of adults do not have a will. The tax return and dental appointment have obvious prompters – 31 January and a toothache – but until now writing a will generally has not had the same impetus. Deferral is an obvious reaction to contemplating our own demise, but now Covid-19 has forced that uncomfortable consideration upon many of us.
A period of statutory self-isolation is not the ideal backdrop against which to draw up a will. The Law Society has succeeded in having solicitors “acting in connection with the execution of wills” classed as key workers by the Ministry of Justice, but that still leaves several problems. In England and Wales, the Wills Act of 1837 requires the person making the will (the testator) to sign it and for their signature to be witnessed by at least two individuals. That’s not so easy with the stipulated two metres of social distancing…To complicate matters further, if those witnesses are beneficiaries under the will, the act of witnessing means they forfeit their entitlement.
In Scotland one witness is required and measures have been introduced to allow signing to be witnessed via video calls with solicitors. The Law Commission has accepted that digital signatures for deeds are valid under English law but made a deliberate exception for wills. The Commission’s decision was driven by a concern about the vulnerability of some testators. As it is, there is already a growing number of wills which are being challenged in the courts.
The lesson to be drawn is obvious: just as the roof should be fixed when the sun is shining, so too should a will (and the associated estate planning and lasting powers of attorney) be sorted before their possible immediate need becomes apparent. When we get to the other side of this pandemic – which will happen – make sure that writing or updating your will is on your ‘do’ list, not the ‘to do sometime’ list.