Wills, SRA Guidance re Coronavirus March 2020
I have added my own comments in the blue type and initialled each paragraph, I have no special status or authority in these matters and my comments are intended to be interesting and to contribute to the ongoing discussion necessitated in these unchartered times. Naomi Pinder, Solicitor and Chairwoman of the Non-Contentious Sub Committee of Liverpool Law Society. 26.03.20
What if there are health risks around seeing a client who wants to make a will. Can I still act for them?
If you cannot get access to a client, you can consider using electronic means. If you are making a will you have a duty to act on the instructions of the client and you would need to be sure there was no undue influence and the client has capacity.
If you cannot assure yourself of this through suitable electronic means, then you cannot act.
I will work on the basis that electronic means includes e mail, Skype or other face to face and audio electronic communication, including telephone. It does not appear to include handwritten instructions, they would need to be confirmed by electronic means, NP
In all these matters it must be noted that not all clients making Wills fit the same pattern and at the moment range from medics to the elderly. It is always very helpful to know clients already, so that there is already a relationship., NP
What should I do if I cannot witness a will in the client’s presence?
Many firms attend to clients and witness the will in the client’s presence. Where this is not possible you must consider other options. For instance:
•Does the client have neighbours that could execute at a distance?
•Can your firm send documents to the client with instructions on how to correctly execute the Will?
I understand this but I am having difficulties with the guidance because we are potentially putting clients at risk by involving witnesses whose health situation re the cv is completely unknown to us, what if a neighbour passed the virus to our client aged over 70? I think that there is a reasonable prospect of this happening and my concern is that the execution is being carried out on our advice and without any supervision. I think that if we cannot provide the “safe” witnessing, the matter cannot proceed to execution at this time. The completed and approved draft could act as a non binding letter of wishes and may be followed, if the Will is never executed before death. A case on this point and in these circumstances, would be of interest. NP
I am concerned that sending the “normal letter” to client containing the instructions on how to execute the Will at home is inappropriate in these circumstances because it could, by implication, encourage people to home execute with the risk of infection. Solicitors’ letters are powerful in the eyes of our clients who trust and rely on us. I can almost hear clients saying , “the solicitor has given me these instructions, so it must be the right thing to do”. NP
In the current circumstances, I think that if we cannot arrange for a safe execution in line with the Gov Rules on distancing, then execution should be postponed until the earliest possible opportunity in the future, once the restrictions are lifted. NP
Some firms have suggested amending the attestation clause to cater for current circumstances – before doing so you should check legal requirements with regard to attestation clauses.
I agree that this is a separate point of law entirely, if this was done then it would need to be tested in a similar way to my suggestion regarding a final and approved draft becoming a binding expression of testamentary wishes in equity. NP
As potential clients have the right to complain to the Legal Ombudsman for unreasonable refusal of service, what are the implications if I refuse to take an instruction for emergency will?
Our Code of Conduct for firms (para 4.2) says that you must make sure the service you provide to clients is competent and delivered in a timely manner taking account of your client’s attributes, needs and circumstances. If firms cannot comply with our Code, they should not take on the retainer. We would recommend you document all such decisions taken.
Naomi Pinder
Chair of Non-Contentious Business Committee