Charlotte Macdonald is an associate solicitor in Stone King’s International and Cross Border team.
Charlotte answers legal and practical questions that are being asked by her clients in relation to the coronavirus pandemic and making wills.
In these unusual and unsettling times many people are considering whether they should make a will, and if so, whether it is even possible to do so given governmental advice on staying inside our homes, both in the UK and in France.
Do I have to use a solicitor to make my will?
Although it is not a legal requirement to use a solicitor to write a will, to ensure that your will is correctly drafted and that all relevant aspects have been reviewed, we suggest that you do use a solicitor.
Many people are unaware that writing a will is an ‘unregulated activity’. This means that it is possible for a person to set themselves up as a ‘will writer’ with no qualifications, experience or insurance.
All practising solicitors are regulated, trained and insured. If you own assets in more than one country it is sensible to use a solicitor who has experience of cross border issues and can ensure that your wills will be valid the country in which they are to be used, and that you don’t include wishes that accidentally give you an unexpected tax burden in either country.
I can’t leave my home – how can I visit a solicitor?
You can ask a solicitor to draft your will remotely.
At Stone King we have operated a remote will service for some time, to help our clients who do not live close to our offices. With the current pandemic, this service is available to everyone who needs a quality, solicitor-drafted will.
What is the process?
After making initial contact, via telephone, email, or video call, and discussing and agreeing fees, the simple process involves:
1. Sending you questionnaires to collect information and understand how you want to leave your assets in your will. We will also carry out identification checks remotely using information you provide by email.
2. Having analysed your questionnaires, we will arrange a telephone or video call with you to talk through your options and preferences. We will offer our advice and recommendations, such as: who should be your executors, alternative ways of making gifts and protecting individuals and saving tax where appropriate.
3. We will send you a letter, or if appropriate, a detailed report on your specific circumstances and draft wills for you to consider, together with recommendations for changes where appropriate. Once you are happy with your wills, we will print and send you bound copies with instructions on how to sign them. We recommend you send them back to us so we can ensure they have been properly signed and we offer a free service to store your will securely, if you wish.
Do I need a witness when I sign my wills?
Under the Wills Act 1837 (an English and Welsh law) in order for a will to be valid, amongst other requirements, it must be:
• Signed by the person making the will (or signed by a person in their presence and by their direction).
• The signature must be made in the presence of two witnesses.
• Each witness must also sign the will in the presence of the person making the will (but not necessarily in the presence of the other witness).
Therefore, prior to the coronavirus lock down, for most people the signing of the will would involve three people sitting down together: the person making the will and the two witnesses.
Although the UK government has announced emergency changes to some areas of law, no changes to the formal signing of wills has been announced at time of writing (08 April 2020).
How do you correctly sign your will if you are self-isolating?
Your witnesses must be physically present with you when you sign your will. This means that signing your will via video link with your witnesses will not be effective.
There is a piece of old English case law which suggests that signing your will on one side of a window whilst your witnesses watch on the other side of a window may be an acceptable way of signing your will.
You may also consider signing your wills outside in an open space where you can see your witnesses but there is enough space between each of you to meet government guidelines around social distancing.
It has been suggested by various health agencies and researchers that coronavirus can live on surfaces for a number of hours, so you and your witnesses may want to consider wearing gloves when signing your will.
Finally, it is important that any person benefiting under the will (or their spouse/civil partner) is not a witness. If they act as a witness, any benefit that they receive under the will, will be invalid.
Our advice is to always speak with your solicitor prior to signing your will as they can guide you through the process to make sure your will is correctly signed.
To view a video on making a will during the coronavirus pandemic, presented by Dan Harris, Head of the International and Cross Border team at Stone King, please follow this link here.
For more information please contact Charlotte Macdonald, Dan Harris, Raquel Ugalde or Harriet Burt at Stone King LLP either by calling +44(0)1225 337599, or by emailing: [email protected]