Can I protect my family in lockdown?
Understandably, the current crisis is focusing people’s minds on their own arrangements for protecting their family in the event of their death. Most people are aware that having a Will in place is incredibly important to protect their loved ones, but many people still do not have a Will in place or haven’t reviewed and updated it in many years.
There remains a common misconception in Scotland that, if a husband or wife dies without a Will, their spouse will inherit their whole estate; this is only true for those with the very simplest affairs. In Scotland cohabitants have no automatic right to a share of their partner’s estate on death. They do have a limited right to apply to Court for provision from the estate within a very short time frame after death, but only where there is no Will in place (no matter how out of date that Will is). The concept of ‘common law husband and wife’ was removed in Scotland many years ago.
As the current pandemic brings the importance of Wills back into focus, questions are being raised over how Wills can be put in place or updated during the lockdown. The BBC recently reported that Wills were being signed on car bonnets and through windows and patio doors to meet the need, under the laws of England and Wales, for two independent people to be physically present to act as witnesses of a Will before it is valid, even during lockdown.
In Scotland, the rules for a valid Will are less stringent. The only requirement is that the Will must be signed by the granter. However, if it is signed at the bottom of every page by the granter and also witnessed by one independent witness signing on the last page, no further formalities are required to prove its authenticity. The Law Society of Scotland has issued helpful guidance confirming that a solicitor can act as a witness to a Will by witnessing the granter sign the Will via video conference. This means that Wills can still be validly signed during the lockdown without putting anyone at risk.
The physical signing of a Will is not the only challenge that needs to be overcome during lockdown. It is easy to see how Wills could be open to abuse; for example a granter being put under pressure from someone else to make a Will in particular terms or a granter who does not have the capacity to change their Will attempting to do so without really understanding the implications of the proposed changes. Solicitors play an important role in ensuring that Wills which are put in place are not only validly executed, but that the person making the Will has the capacity to do so and is doing so of their own free judgement. This generally means that, to date, taking instructions for Wills has required face-to-face contact where clients are not known to the solicitor already. Again, the Law Society of Scotland has issued helpful guidance confirming that solicitors may take instructions for a new Will or changes to an existing Will via video conferencing, provided the solicitor continues to ensure their obligations to check a client’s capacity and be aware of any possible undue influence are still observed.
As a firm, we have developed our own protocol for dealing with the new world in which we find ourselves and we are still fully able to assist the majority of new and existing clients who wish to put a Will in place or adjust an existing Will during this time. We are making use of various technologies to allow us to ensure that client’s instructions can still be implemented whilst reducing the risk so far as possible of future challenge to the validity of the Will.
Another important consideration alongside Wills is Powers of Attorney, which allow you to appoint someone to manage your finances and make decisions regarding your health and welfare if you are unable to do so, for example through illness. In the absence of a Power of Attorney, if a person loses capacity, even temporarily, it may be necessary to apply to Court for someone to be appointed as a Guardian. This is a time consuming and costly process. The Scottish Courts are currently working hard to adapt to how Court business can still be processed during lockdown, but inevitably there will be delays in all Court related work. Again, practitioners, the Law Society of Scotland and the Scottish Office of the Public Guardian have been working to develop new methods for ensuring valid Powers of Attorney can still be put in place during lockdown.
If the current pandemic has raised questions in your own mind about your arrangements, you should not hesitate to get in touch with your normal contact at Gillespie Macandrew to discuss your concerns, rather than worrying that it will all need to wait until the world returns to some version of normality.Back to news list