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The latest legal news & family, employment, personal injury and wills & succession law news from Complete Clarity Solicitors.

Who can witness my Will with social distancing measures in place?

In light of the current coronavirus (COVID-19) pandemic, you will likely have numerous questions about how this could impact your estate planning. Now, more than ever, it is vital to check that all of your documents, especially your Will, are up to date and reflect your current life circumstances.

At Complete Clarity, we are here to help you through this unprecedented time, offering free initial consultations over the phone to discuss your specific case. You can contact us on 0808 168 5822 or by completing the online enquiry form, and one of our specialists will get back to you as soon as possible.

The legal requirement for witnessing Wills

The COVID-19 crisis has not only disrupted our daily routine, but it is making it even more challenging to prepare for the future. With the majority of our days being spent indoors, the current pandemic has given many people the time (and reason) to reflect on their Will and whether it is out of date or that they do not have one in place at all.

In Scotland, a Will can only be made by a person (the testator) who is over the age of 12, in writing, and by someone who is of sound mind. Under normal circumstances, a new or amended Will must also be witnessed and will only be deemed valid when it is:

  •   Signed by the testator on each separate page
  •   Witnessed on the last page by one person over the age of 16 and with no mental impairment

When the Will has been signed and witnessed, then it is considered legally valid.

You can read more about the requirements for writing a Will in Scotland by online enquiry form

Social distancing – can I still make a Will?

With the strict measures of social distancing and staying at home in place, there is public confusion over what this means for writing a Will and, subsequently, having witnesses to ensure the document is legally correct.

For some, this may be made possible if they live with someone who is not a family member or beneficiary, e.g. a flatmate. However, for those whose current household consists only of their close relatives or someone who stands to benefit from your Will, the situation becomes more complex as using them as a witness may invalidate the legacy left to them on your death.

For the time being, and until the current measures are relaxed, we will be offering our private client services by telephone and video facilities, handling new and existing instructions for Wills and continuing to provide effective legal assistance. Call Complete Clarity today on 0808 168 5822 to see how we can help you. 

Temporary guidance for Wills in Scotland

On 25 March 2020, the Law Society of Scotland (LSS) produced temporary guidance to help with the current problems surrounding the execution of Wills. The LSS categorised the short-term solution into two sections:

1) Instructions taken before coronavirus measures

If you had already instructed a solicitor for your Will, the document can be posted (or emailed via PDF) to the testator for signing. This is based on the assumption your solicitor was able to assess your capability and susceptibility to undue influence and had no concerns preceding the social distancing measures.

An available witness

If a suitable person is available to witness the testator’s signature, then you can be given directions to complete the execution of the Will as normal. The Will can then be returned to your lawyer if you so wish.

No witness physically present

Under the current circumstances, it may not be feasible to have a witness physically watch the testator sign their Will. In such cases, the LSS has said it may be possible to arrange a video conference (such as Skype or FaceTime) between you and your lawyer. By doing this, the solicitor can witness you signing the Will or have someone join the video link. The Will would then be returned to your lawyer.

The LSS believes that, if the witness was visually able to see the testator sign the Will, they can legally sign and complete the already-signed Will from the testator to make it valid.

No witness or access to video facilities

For those who are unable to make any visual contact through a video link and there are no witnesses available, your signature alone at the end of the Will is sufficient to make it valid. At this point, the Will would be returned to your lawyer.

However, should the Will remain as is on the death of the testator, it will be necessary as part of the Confirmation process to ‘set up’ the Will as being signed by the testator, by affidavit evidence as to their signature. As such, the LSS recommends a properly executed version replaces this Will once the current measures of social distancing are lifted.

2) Instructions taken during lockdown

If you are an existing client with a firm and would like to instruct your Will during this period, you will be subject to, at the very least, a telephone conversation with your lawyer. The LSS says the preferred method would be a video call, as stated previously.

I am a new client – can I instruct you during these measures?

For those instructing a solicitor for the first time, a meeting with your chosen lawyer is possible via a video link. It’s important to note your solicitor still has a legal obligation to ensure you have capacity and are not being unduly influenced to instruct or amend your Will.

Identification checks

When a client is entirely new to a firm, verifying who you are will need to take place over the video call, with the testator holding up identity documents for the solicitor to view. The solicitor can take a screenshot of the video conference or have the client scan the documents used in the call to confirm their identity to the lawyer.

The LSS has made it very clear that, despite the obstacles the coronavirus has caused, they are unable to waive the requirement for identity checks to be carried out. This means that, if you are instructing a firm for the first time, we will want to have a video call of some sort with you to ensure your identity but we can discuss this further with you.

Contact our Wills lawyers in Glasgow & Edinburgh today

Although this is a surreal and difficult time for everyone, the COVID-19 pandemic highlights the importance of ensuring your Will is prepared for unexpected circumstances such as these. While our office remains closed, our lawyers at Complete Clarity remain fully available to speak with you today. Do not delay, get in touch with our Willsteam today and we will help ease any concerns you may have about the execution of your Will during this crisis.

*Please note this information is accurate as of 15/04/20 and is subject to change as official guidance is adapted to reflect the implications of the virus.

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