Where There’s a Will, There’s a Way – Overcoming the Challenges of Putting Wills in Place in a Pandemic

Over the last number of weeks there has been increased focus on Wills, both by the media and the public at large.  It is something that most of us have put on the long finger for years, however, with the COVID-19 pandemic, Wills have seen renewed emphasis.  As a result, most solicitors around the Country have seen a marked increase in the number of clients enquiring about Wills, however, given the current circumstances, solicitors face significant challenges both in terms of taking instructions for Wills and in arranging for the execution of Wills.

There are a number of advantages of putting a Will in place versus dying intestate i.e. without a Will, which I have summarised below.  The huge benefits of having a Will in place mean that it certainly outweighs the present challenges faced and it is incumbent on solicitors to work with clients, in so far as possible, to find solutions around these obstacles and to assist clients in putting a valid Will in place, which would stand up to any later scrutiny.

On taking instructions for Wills, a solicitor must assess a testator’s mental capacity to give those instructions, to understand their instructions and to understand the effect of putting a Will in place based on those instructions.  This is a legal assessment rather than a medical assessment, however, in certain circumstances it can be useful to obtain the support of an affidavit of testamentary capacity from an attending doctor when arranging for execution of a Will.

A solicitor, on taking instructions, must also assess and ensure that there is no question of any undue influence or external pressure being exerted on a testator to make certain provisions in their Will.  Understandably, it can be more difficult to make assessments of capacity and undue influence by telephone or video conferencing, than in person.  In giving instructions for a Will, clients should therefore expect a number of lengthy telephone calls with their solicitor, in excess of what they might otherwise expect from a face to face meeting.

In terms of the formalities surrounding the execution of Wills, we are still constrained by the strict provisions of the 1965 Succession Act, which could not have foreseen the present crisis and resulting restrictions.  In accordance with the Succession Act, a testator must sign their Will in the presence of two independent witnesses. The independent witnesses must then sign the Will as such, in the presence of the testator, although, interestingly, not necessarily in each other’s presence.  This specific requirement for the execution of a Will poses difficulties in light of the current restrictions on movement and the HSE’s recommendation that certain particularly vulnerable members of society should cocoon.

No amendment to the 1965 legislation has been enacted or is indeed proposed, even on a temporary basis, despite emergency legislation having been enacted in places such as New Zealand, Ontario, Canada, Queensland, Australia, Jersey and certain US States.  The temporary legislation enacted in these places essentially allows for the execution of Wills by way of Video Conference or for the virtual witnessing of Wills, until the restrictions imposed by the COVID-19 pandemic are lifted.  However, the requirement for two independent witnesses to be present at the signing of a Will is seen as an important safeguarding measure, particularly in the protection of elderly and vulnerable persons from undue influence or fraud and no doubt this is the principle reason why there is a reluctance both in Ireland and the UK to loosen these measures by introducing similar emergency legislation.

We are therefore forced to try to come up with other, sometimes novel, ways of overcoming these difficulties while still ensuring compliance with the requirements of the Succession Act, 1965.  This could include a testator signing a Will just inside the window of their house or inside their car, while the signing by the testator is visible to the two independent witnesses standing outside and then, using separate pens, each witness signs the Will in the testator’s presence, again at the window, while exercising social distancing from each other.  Following execution of the Will, it is advisable for a solicitor to then subsequently draft and arrange for the swearing of an Affidavit of Attesting Witness, which essentially outlines the circumstances surrounding the signing of the Will and can be used in defence of any subsequent challenge to validity of the Will.  It is also important for a solicitor to keep detailed attendance notes of the contents of each and every telephone call and the meeting to arrange for the signing of the Will.

Benefits of Putting a Will in Place

  • Ensures distribution of assets reflects the wishes of the testator rather than the rules of intestacy
  • Allows the testator to decide who will administer their estate (executors)
  • Usually a quicker and cheaper administration process on death
  • Gives the testator peace of mind
  • Prevents unnecessary stress on family
  • Protects your partner, if you are unmarried
  • If the testator has minor children, a Will allows them to appoint testamentary guardians and to decide who should take care of their children, rather than leaving it to a Court to decide
  • Allows the testator to provide for any special needs or specific requirements of family members
  • Allows the testator set up a Trust for minor or young adult children beyond the statutory age of 18 years and allows a testator to decide who will administer the Trust (trustees)
  • If completed correctly and with the appropriate skilled advice, it can be used as a tax planning opportunity, allowing for assets to be left to the next generation in a more tax efficient manner
  • Reduces the likelihood of a successful claim being made against the estate

How we can help

If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Trea McGuinness in the Private Client Department of BHSM on 01 440 8300 / tmcguinness@bhsm.ie.

This article is for general information purposes.  Legal advice must be obtained for individual circumstances.  Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.

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