Is private client law moving into the 21st century…
The Government has just announced it will endorse the 'virtual' witnessing of Wills, whilst the Office of the Public Guardian (OPG) has recently launched a new online service to help those using Lasting Powers of Attorney.
The outbreak of COVID-19, has focused clients' minds. Not surprisingly, we have seen a sharp increase in the number of clients wanting to make Wills and Lasting Powers of Attorney for the first time or to review what they already have in place. Social distancing and shielding (self- isolation) has, however, meant that the whole process, particularly the signing of Wills and LPAs, is practically challenged, even more so for the most vulnerable in our society.
The Will signing process
The rules relating to how a Will must be signed and witnessed are enshrined in legislation dating back almost 200 years old, (Wills Act 1837), and these rules are sacrosanct for any private client practitioner. A Will, to be valid, must be signed in the presence of two witnesses, who each must then sign in the presence of the Will maker. Of course, witnesses should also be independent and not stand to benefit from the Will. All sounds relatively straightforward and do-able until COVID-19 comes along…
Whilst there are good arguments that this historic legislation should be construed as permitting 'remote execution', the courts have not been required to decide on this point, and therefore there is a risk, that in going down this route, the validity of a Will could be challenged.
Legal professionals and their representative bodies have therefore been working with the Government to bring about change by harnessing the use of the better technology available. This weekend's announcement by the Government that it is introducing temporary measures to address some of these difficulties is therefore welcome.
It is anticipated that the new law, which will also apply to codicils, will come into force in September and that it will apply retrospectively to cover wills made since 31 January this year (unless a Grant of Probate has already been issued or is in the process of being made) and will continue to be in force for 2 years i.e. to 31 January 2022. As with other COVID-19 related legislative measures, this period could be shortened or extended or be made permanent.
What has changed?
The draft legislation has not yet been published, and therefore caution is still advised, but we believe the new temporary law will expressly allow people to use a video link to witness a Will being executed, if the physical presence of that witness is not feasible. It would appear that all other formalities will remain as stated in the Wills Act 1837.
The Will maker and both witnesses will still need a clear line of sight of each other at each stage of the signing process and if both witnesses are remote, then a three way video link will be necessary. The Will maker and witnesses must sign in real time and it is suggested that ideally the signing should be recorded or, at least, a full attendance note made.
Given the necessity under the Wills Act 1837 for the Will maker and the witnesses to sign the original Will, it is envisaged that the original document will then need to be sent to the witnesses for their wet signatures. At this point, another video link call will need to be arranged so that witnesses sign the original Will, in the Will maker's remote presence.
The date of the Will will be the date it is signed by the Will maker although it will not be valid until it has been signed by both witnesses.
It's not difficult to spot some immediate shortcomings:
First, confidentiality. If the Will has to be sent to the witnesses for them to sign, this means that a witness will be able read the Will, in the comfort of their own home! Wills are often highly confidential and personal documents and not many will makers will want their witnesses to have access to this information. Careful witness selection will therefore be key and no doubt professional witnesses will play a greater role.
All involved in the process will need to be confident with the technology and particularly, what to do if things don’t quite go to plan. It's great when it works but not so good when your wifi suddenly decides to crash! There is also a risk that the document will get lost in transit to the witnesses.
From a practitioner's perspective, and with the elderly and vulnerable in mind, there is arguably greater scope for abuse in the context of fraud, undue influence and duress, so all these risks must be mitigated in the same way as would be addressed by professionals in a face to face meeting.
Does the legislation go far enough?
Whilst the Government also reviewed the use of electronic signatures, the use of counterparts (separate copies of the Will being signed by the Will maker and witnesses) and reducing the number of witnesses, none of these measures have yet been introduced, largely due to concerns of abuse. Discussions continue however and it may well be that further change is on the horizon.
The OPG's new Use a Lasting Power of Attorney service
If the maker of a Property and Financial Affairs Lasting Power of Attorney (LPA) becomes unable to manage his or her affairs it is currently necessary to send a copy of the original document certified on each page to all relevant organisations/institutions to enable the attorney(s) to act. This can be a time consuming and lengthy process and in the case of banks, often requires attorneys to have face to face meetings with bank representatives.
The OPG's new Use a Lasting Power of Attorney service is designed to make this process much easier by using technology to allow organisations to securely view an online summary of the LPA. The new service is to be gradually rolled out, initially to those registering LPAs from 17 July 2020 and thereafter for those who have registered LPAs earlier this year and in 2019. However, given that the OPG has over 4 million LPAs registered, it will likely take some considerable time to complete the roll out.
Under the new service once the LPA is registered, the maker of the LPA and the attorneys will be sent an activation key. This will enable them to create an account online and use the activation key to add the LPA to their account. The maker of the LPA and/or the attorneys can then create an access code to give to organisations, to allow them to view an on line summary of the LPA. The service can also be used to keep track of which people or organisations have been given access to the LPA.
The OPG believes the service will support those using LPAs by reducing the time involved in notifying organisations to only a couple of days.
Undoubtedly some makers of Property and Financial Affairs LPAs will be concerned that their attorneys might use the new service to take charge of their affairs when they are still fully able to do so. This serves as a useful reminder and emphasises possibly the most fundamental principle involved in making LPAs, which is that the most careful consideration must be given to choosing who to appoint as attorneys.