With the continuous spread of coronavirus across the UK, many people are rightly concerned about their own health and the health of their family. This naturally leads to people reviewing their Wills to confirm whether the contents of those Wills are fit for purpose or require to be updated, or indeed, deciding it’s time they put a Will in place for the first time

With the UK now in lockdown all face-to-face meetings between solicitors and their clients have now ceased. In order to deal with the issues around instruction of Wills and witnessing, the Law Society of Scotland has issued guidance as to how the client/solicitor interaction and the process can continue in these extraordinary circumstances.

What is the normal process?

When a client is looking to update a Will, our normal procedure is to meet with that client to take their instructions. A draft Will is thereafter emailed or sent by post to that client. Any amendments to that draft are discussed over the phone or instructed by email. Once a draft Will is in the exact form a client is happy with there are two options. The Will can either be sent to the client (by email or Post) for them to sign in the presence of an independent witness or we can organise for the client to come into our office where the Will can be signed and the solicitor (or a colleague) can act as the witness. During the enforced lockdown this process is no longer possible

I want to make a new Will.  How do I instruct you now?

If you are an existing client of the firm, we are able to take your instructions over the phone, but our preference would be by video call. If you are not an existing client of our firm then we must conduct our initial meeting by video call to take your instructions. After we have taken your instructions, we can provide you with your draft Will by email or post. Once you are happy to proceed with the Will we can send you the principal copy for signature.

How can I have the Will witnessed by an independent person during lockdown?

Normally, the signing of a Will is witnessed by an independent person. However, during lockdown, this is difficult to facilitate. The Law Society’s guidance has confirmed that witnessing may take place by video call, with the solicitor viewing the client signing the Will. The Will would then be returned to the solicitor to sign as a witness.

If the client does not have access to video call facilities then the Will can still be signed by a client without a witness. The Will would not be known as “self proving” and in the event it had to be relied upon, would require to be set up by affidavit evidence that the signature on the Will is that of the deceased. In practice this is not too difficult to do and would certainly be a better option than dying with an out of date Will or no Will at all.

Alternatively, a Will can be witnessed by a household member. In Scotland, although independent witnesses are preferred, there is no absolute bar against a family member acting as a witness.

Wills put in place at this time with no witness or a non independent family witness should be re-signed before an independent witness once lockdown has ended.

At Burness Paull, we have heavily invested in our technological capabilities over the last few years. All our private client solicitors are set up to meet clients over video calls and provide continuity of service during this time. If you are a new client to the firm, all our pre-file opening compliance can be completed through our online software. This has proved a seamless process for both our team and our clients and all from the safety of our own homes.

We understand that having a current, up-to-date Will is major concern for clients at this worrying time and we are here to help. Please do get in touch with any member of our team if you wish to discuss your Will or any other personal legal matters. In the meantime, we hope everyone remains indoors and as safe as possible.

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