UPDATE ON REMOTE SIGNING AND WITNESSING OF WILLS

UPDATE ON REMOTE SIGNING AND WITNESSING OF WILLS

UPDATE ON REMOTE SIGNING AND WITNESSING OF WILLS
Posted on 30th November, 2020

Update on remote signing and witnessing of wills

Following on from our recent article on remote signing and witnessing of wills, we want to offer an update now as a result of the new law being in place.

The technical bit

A change to the Wills Act 1837 has been brought about by Statutory Instrument. The change is made pursuant to s. 8 of the Electronic Communications Act 2000, which creates the power to modify other Acts so as to authorise the use of electronic communications for a wide variety of purposes, including anything that requires a witness (s.8(2)(c)).

The long-standing position has always been that two witnesses’ signatures must be made in the physical presence of the testator for the will to be valid. The new change to the legislation amends the definition of “presence” to include presence by means of videoconference or other visual transmission.

There is debate amongst practitioners and academics as to whether the old provisions already allowed for remote witnessing of wills, but the new legislation leaves us in no doubt.

The legislation is retrospective from 31st January 2020, which is the date of the first UK case of COVID19.  This will give some peace to those who felt their only option was to make a will remotely.

The legislation is time-limited until 31st January 2022, after which, without further legislation, the requirement for physical presence will return to the position prior to COVID 19. I would say that the jury is out as to whether this will remain a permanent way to make wills going forward.

It is important to note the retrospective element of the legislation does not apply to the following situations:

  • Where a Grant of Probate has already been issued in respect of the deceased person; and
  • Where the application for a grant is already in the process of being “administered”.

What are the practicalities of remote witnessing of wills?

Making a remote will is not an easy option and there are many drawbacks.

Guidance has been issued by the Ministry of Justice as to how this should take place as follows:

Signing by the party making the will 

  • All parties need to be on a video link, so you and your witnesses will need to be confident with the technology required to do this. The person making the will ensures that their two witnesses can see them, each other and their actions;
  • The signing will need to be recorded;
  • The will-maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well;
  • By law, the witnesses must see the will-maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders. This may make it difficult for the person making the will to be on their own as it could need the camera to be held at an angle to catch the image required to validate the will;
  • If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity – such as a passport or driving licence;
  • The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link;
  • The will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document. The longer this takes the greater potential for problems to arise; and
  • A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it, and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally effective.

Witnessing of wills

The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign. This will require a further recorded session.

  • Both parties (the witness and the will-maker) must be able to see and understand what is happening;
  • The witnesses should hold up the will to the will-maker to show them that they are signing it and should then sign it (again the will-maker should see them writing their names, not just see their heads and shoulders);
  • Alternatively, the witness should hold up the signed will so that the will-maker can clearly see the signature and confirm to the will-maker that it is their signature. They may wish to reiterate their intention, for example saying: “This is my signature, intended to give effect to my intention to make this will”; and
  • If the two witnesses are not physically present with each other when they sign then step four will need to take place twice, in both cases ensuring that the will-maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.

Key points to note

  • This will take longer than making a normal will which may impact on the overall cost of a will, and runs a greater danger of someone dying before the completion of a will;
  • Problems may arise in relation to internet connection especially where people live more remotely; and
  • If the recording is not adequate to demonstrate the signing, the will may not be valid.

I would argue that if remote signing and witnessing of wills is to stay, then more work needs to be done to make this a practical and viable choice over the traditional way, and, in my opinion, the current procedure does not make it a viable option for clients.

Our Advice

  • Where possible, make a will in the traditional way: discuss your circumstances with your solicitor to see what can be done to facilitate this. Solicitors have thought of many ways to get wills signed, including drive-through and looking through the window, amongst other ideas. This will save time and money.
  • If you do have to make a will remotely, re-sign it in the normal way at the first opportunity you get as there are fewer risks with a traditionally signed will.

Should you have any questions regarding the making of a will please contact a member of our Private Client team on 0800 8840 640.

Do your old style tax planning Wills need updating in line with changes in the law?

Do your old style tax planning Wills need updating in line with changes in the law?

Up until 9th October 2007, it was common for people to have Nil Rate Band Discretionary Trust Wills drawn up as a form of tax planning for the family.

The idea of these wills is that everything up to the inheritance tax threshold on the first to die passes into a Discretionary Trust. The funds in this trust are then held by the Trustees on benefit for the survivor and other beneficiaries such as the deceased’s children and grandchildren. The funds in the Trust usually comprise a half share of the matrimonial home and any sole accounts held by the deceased. Joint accounts will pass automatically over to the survivor.

When the second spouse dies their assets would generally be the remaining half share of the property and their own sole accounts because the other half is still in trust. This should then mean that the second spouse’s estate falls below the inheritance tax threshold thereby saving inheritance tax on their Estate.

From October 2007 the government introduced the transferable nil rate band which meant that where a person leaves their estate to their spouse, then the survivor can benefit from an additional allowance which can be up to double the inheritance tax threshold. Therefore on the first death, the estate should be exempt for inheritance tax purposes because it is passing to a spouse, and then on second death the surviving spouse can have up to £650,000 before any inheritance tax is payable.

In addition there is a Residence Nil Rate band allowance for the family home which from 2020 can allow a married couple (or civil partners) who gift their property to direct descendants (children, step children, adopted children are some that are included) to benefit from an additional allowance of £175,000 each so that a married couple with children could have an Estate up to £1 million before any inheritance tax would be payable.

These changes mean that these type of Wills are not always needed for tax planning purposes. However they can have their own benefits to protect assets for future generations.

Depending on your circumstances it might be that a type of Life interest or a full Discretionary Trust might suit your needs. You may prefer to get rid of the Trust altogether and have simple Wills prepared.

As such the best option would be to speak to one of our specialists who will provide you with the best options for you and your family.

For more information or some preliminary, confidential advice contact a member of our Private Client team in your local office.

What happens if I lose mental capacity and I have not made a lasting power of attorney?

What happens if I lose mental capacity and I have not made a lasting power of attorney?

What happens if I lose mental capacity and I have not made a lasting power of attorney?
Posted on 17th March, 2021

What do I mean by mental capacity?

Mental capacity is a complex subject but, at its most simplistic, it can be defined as our understanding of a given concept, situation, or predicament. It refers to our ability to be able to weigh up the pros and cons of a situation and make an informed decision. It is not black-and-white because very often it is not a case that one day we can make all our decisions and the next day we cannot make any. It is time and task-specific. This means that it depends on our understanding at a specific time, which is important if our capacity is fluctuating especially if we have good days and bad days, and it depends on what we need to understand about that specific decision we are being asked to make.

The important question that we should ask ourselves is who will make decisions for me if I cannot make them for myself? The starting point is always to check whether the person whose mental capacity is in question has done any planning for this possible eventuality by making a lasting power of attorney or if there was an old-fashioned enduring power of attorney in place.

There are two types of lasting powers of attorney:

  1. finance and property; and
  2. health and welfare

These are two very different and specific areas and you have to have both powers in place in order to make decisions in both categories.

If you have an enduring power of attorney in place you have covered the decisions that may need to be made on your behalf in relation to property and finance. However, they do not apply to welfare decisions.

Not everyone makes lasting powers of attorney and there are often various reasons why this is the case. In my experience, It can be because people are not aware that they can make powers of attorney. It can be because people think that this will impact upon their independence and don’t see it as a support tool. Sometimes the older we become the harder it is to make these decisions because we are nearer to the prospect of needing support. Some families have relationship difficulties with their children or between their children and so it makes it very difficult to decide who would be the appropriate person to be involved. In these circumstances, sometimes people choose not to make that decision because it’s easier to do that than run the risk of causing any more friction within the family. Some people do not have family and don’t know that they could ask a professional to do this for them.

If, for any reason, you or a loved one loses mental capacity, and you have not had the foresight to prepare for this situation, it is not the end of the road. There is an alternative that may offer some assistance. That is the Court of Protection.

What is the Court of Protection?

The Court of Protection is a special court that makes decisions on behalf of people who cannot make decisions for themselves. Someone could apply to the Court on your behalf and ask that they be appointed as a deputy to have the authority to make decisions on your behalf that you cannot make for yourself. That person would be referred to as a deputy.

There are two pathways for appointing a deputy. The first pathway is for property and finance which will involve stepping into your shoes and managing your affairs on your behalf in accordance with the powers conferred by the court in their order. It is very important to set out the powers that you will need when making your application.

The second pathway is for health and welfare. The Court is more reluctant to appoint a health and welfare deputy because it would prefer to deal with issues of welfare on a matter-by-matter basis. It recognises that to give someone a carte blanche ability to make welfare decisions for someone is to give them a lot of power over that person. However, the Court will look at appointing a health and welfare deputy where there are decisions that are going to need to be made about someone’s care, medical treatment, and place of residence. This will be particularly important if there are conflicting ideas as to what is the most appropriate way forward for the person who is unable to act for themselves.

The initial application to the Court is a paperwork application. The matter will only go before the Court if it is disputed. The outcome is the same as appointing an attorney but there are some extra protections for the named person. That being an insurance policy has to be put in place so that if the appointed deputy acts negligently, or if there is any impropriety, the named person will be put back into the position that they would have been in had the deputy not been appointed.

The deputy also has a duty to prepare an annual report to the Court giving an account both of the finances that have been spent in the current deputy year and any decisions that they have had to make on their behalf. The report also includes the people that the deputy has had to consult during that year.

The process for applying for a deputy does take longer than making lasting powers of attorney. In my experience, when a family is applying to the Court for an order it is because something needs to happen that cannot happen without it. This can be quite stressful for the family. It is also more expensive because you have to consider your solicitor’s fees, court fees, the cost of preparing a medical report, and the ongoing insurance costs. In most circumstances, these costs will come out of the named person’s estate.  However, if it is a disputed matter then not all costs may be allocated to the named person. That would be a matter for the Court to decide.

The plus side of a deputyship is that there is annual accountability scrutinised by the Office of the Public Guardian.

If you would like more information regarding making a Court of Protection application or making lasting powers of attorney, please contact me on jane.flaherty@everys.co.uk or 01404 541904.

 

 

 

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EVERYS SOLICITORS’ EMMA GRAY APPOINTED DEVON & CORNWALL REGIONAL CO-ORDINATOR OF SOLICITORS FOR THE ELDERLY

EVERYS SOLICITORS’ EMMA GRAY APPOINTED DEVON & CORNWALL REGIONAL CO-ORDINATOR OF SOLICITORS FOR THE ELDERLY

Solicitor Emma Gray, of Everys Solicitors in Honiton, was appointed as Regional Co-ordinator for the Devon & Cornwall region of “Solicitors for the Elderly” (SFE) in June 2018.

Established in 1996, SFE is a national network of highly skilled lawyers providing legal services and expert advice on Powers of Attorney, Living Wills, tax planning, funding for social care and many other related issues, specifically for the elderly and vulnerable.  Prior to joining SFE, as well as being fully qualified solicitors who spend 50% of their time on older client law, potential members must obtain both the ‘SFE Older Client Care in Practice Award’ and the ‘Older Client Law in Practice Award’.  These develop the soft skills necessary for dealing with elderly and vulnerable clients which includes understanding the issues affecting health and wellbeing in later life, as well as being able to detect elder abuse such as when a client is being coerced.  As a benefit of the membership, SFE ensures its members are kept fully abreast of the latest developments through newsletters, updates, on-going training and events.

As a Regional Co-ordinator, Emma Gray is the main point of contact for Devon and Cornwall and links in with the national group.  Together with the support of the Devon and Cornwall committee, she ensures that information is communicated to the local members through meetings and training sessions provided by experts in the field of elderly client legal services.  As well as being responsible for running the local branch, and being a key contact for legal advice in this area, Emma is a local ambassador for SFE; raising awareness of elderly client issues with local organisations.

Emma said: “I have been a Dementia Friend for a number of years and have, unfortunately, both been a carer for a family member and suffered the heartache of bereavement.  My new role as Devon and Cornwall Regional Co-ordinator gives me the opportunity to continue furthering the legal knowledge and understanding of all the issues surrounding the elderly and vulnerable within our community.”

Everys Solicitors is an independent law firm with recognised expertise in legal issues affecting the elderly and vulnerable.  With Emma’s new appointment, clients can have the confidence that Everys has the specialist knowledge and skills required to handle their case with sensitivity and professionalism.

Contact:
Emma Gray
Tel: 01404 540941
Email: emma.gray@everys.co.uk

What happens if I lose mental capacity and I have not made a lasting power of attorney?

Becoming Dementia Friendly

Becoming Dementia Friendly
Posted on 19th September, 2019

Emma Gray and Joan Pullin, both Associate Solicitors in our Private Client department based at Honiton, have been working towards making Everys Solicitors a Dementia Friendly firm. After consultation with Gina Awad and Heather Penwarden of the Exeter Dementia Action Alliance (EDAA) and Honiton Dementia Action Alliance (HDAA) respectively, Everys is delighted to announce that this project is now underway.

Emma Gray said, “This is a really exciting time for us. We are very aware of the need to adapt our practices so that we are a fully inclusive firm. We have clients who are living with dementia and we want to ensure that they feel safe and confident in our offices, and when dealing with staff members.”

“With over one million people in the UK predicted to have dementia by 2021, it is important that we adjust our services and the way we deliver them now,” said Joan Pullin. “We are in the process of arranging training for all our staff and this will be provided by Gina Awad and Heather Penwarden, whose advice has been invaluable in helping us drive this forward.”

The training will help us improve our customer service by making all our offices welcoming and friendly, with clear signage and reduced noise to help alleviate any confusion our clients may encounter. The training will also enable our staff to be well informed of the issues surrounding dementia and to have the confidence to deal with clients who may be living with dementia to make them feel at ease and cared for.

Be in control of your estate … make a will!

Be in control of your estate … make a will!

Be in control of your estate … make a will!
Posted on 12th June, 2020

These are unprecedented times, and with difficult times comes difficult conversations. That includes thinking about what we want to happen to our estate when we die.

Making a will may not resolve all your fears or issues, but it goes a long way to giving you peace of mind to know how your estate will be dealt with upon your death. 

People often think that if they die without a will all their estate will go to their spouse or civil partner. This is not the case and it depends on the size of your estate. Another misconception is that unmarried partners will be entitled to a share of their partner’s estate if they die without making a will. This, also, is not the case and partners can be placed in a position of having to make a claim against an estate at a very difficult time for them.

There are important questions we may need to ask ourselves such as who will look after my children? Does my family know my funeral wishes? How will my digital assets be accessed? Do I need to do some tax planning or care fee planning?

Making a will puts you in control. You can choose the person, or persons, whom you want to sort out your estate. You might have a vulnerable child and want to protect their assets or a care package by placing monies into a trust.

My best advice is to discuss those important questions with a qualified adviser who can guide you through your choices that help you to achieve your objectives.

At this time, we are responding to the challenges of preparing wills and we have found flexible ways of working whilst maintaining professional standards. Our offices are not yet open to the public. Most instructions are taken via the telephone or by FaceTime, Zoom or Teams.  The signing of wills can be done remotely if clients can source their own witnesses. If not, we are now able to offer will signing outside some of our offices. Some home visits are available where it can be done safely, and all parties involved feel comfortable.

If you would like to discuss making a will, please call 01404 43431 or email Jane Flaherty at jane.flaherty@everys.co.uk.