The Law Society Probate, Administration and Trusts Committee has issued some guidelines for making wills in the current extraordinary circumstances for practitioners and legal advisers.

The guidelines are suggested for practitioners in relation to drafting and executing wills during this period of self-isolation and social distancing.

Taking instructions

Where possible, instructions should be taken over the phone and the draft will be sent to the client by e-mail for approval and amendment before any decision is taken in relation to the execution of the will.

Obviously, some clients may not have e-mail or any internet access or a smartphone and taking instructions and advising over the phone will be time-consuming.

It is not appropriate to take any prolonged instructions in a room with anyone and in particular an elderly person, as it would expose that person, as well as you and your employees.

The telephone will work well and the client needs to understand that they have to be fully satisfied with the will as this will be the version they will sign. No last minute codicils are advised.

If time is not of the essence, the draft will can be posted to the client for approval or amendment and posted back.

If it is not intended that the draft be executed by the client, this should be made clear to the client.

Executing the will

Once the contents of the will are fully agreed, arrangements must be made to have the will executed.

The Succession Act 1965 is perfectly clear on this and the will must be signed or their signature acknowledged by the testator in the (physical) presence of witnesses who must then sign in the presence of the testator. Both witnesses have to be present when the testator signs but they do not have to sign in the presence of each other, so a suitable distance can be maintained at all times.

It is a decision for each practitioner to make, again depending on their own circumstances and the physical layout of their offices and the space available to them whether it is appropriate for the client to attend at their offices to execute the will.

Protocol

If a client wants to attend at your office, the following protocol is advised:

• The client enters your office and is brought (at a safe distance) to your largest room.
• They bring their own pen with them and wear gloves if appropriate (it should be noted that gloves could transmit the virus).
• They sign the will which has been left for them on a recently cleaned flat surface, in your presence and in the presence of one other witness.
• Having signed, they can step away to a safe distance, then you can sign using your own pen and gloves if necessary and walk away.
• Then the other witness can sign with their own pen and gloves – all parties at all times maintaining the necessary distance from each other.
• If your client wishes, you can post or e-mail a copy of the signed will to them.

Where the client is unwilling or unable to attend at your offices the practitioner must consider whether on this rare occasion it would be appropriate to send the will out to the client by post or whether the practitioner would consider travelling to the client’s home to have the will executed.

Attending at a client's home

If you are travelling to the client’s home to execute the will, the following protocol is suggested: you and the witness may have to travel separately, or the client could organise a witness such as a neighbour to be there to witness the will along with yourself (assuming there is no charging clause in the will).

Writing surface

You should ask the client to have a desk or similar writing surface placed in front of a window, post the will through the letterbox, have the client execute the will, witnessed by you and the other witness through the window (if necessary the client can hold the will up to the window and sign it there) witnessed by you and the other witness.

You and the other witness can then sign the will in the visual presence of the testator.

Alternatively, if the client is sitting in their car when their solicitor arrives, they can sign on the dashboard of their car witnessed by a practitioner and the other witness.

The solicitor and the other witness can then sign on the bonnet of the car, at all times maintaining a social distance.

Separate envelope

Practitioners may consider keeping the will in a separate envelope for at least three days to reduce the possibility of viral transmission.

The drafting and execution of an affidavit of attesting witness should be attended to as soon as practicable after the execution of the will.

Costs should be agreed up front and paid to the practitioner on attendance or in advance.

There may be an additional travel charge.

Postal protocols

If it is agreed that the practitioner will post the will out to the client who will then organise their own two independent witnesses, the practitioner should advise the client that the witnesses need to see the testator sign their name; and that the witnesses can do this from a distance or, even, through a window, if this makes them feel more comfortable.

An A4 sized stamped addressed envelope may be considered for the client’s use, and the posting should be flagged.

The envelope should not be opened for a number of days after receipt.

If a client has broadband and wi-fi, it may be helpful if they were to ‘Skype’ or ‘Facetime’ an office while attending to the execution of the will.

Suggested instructions for execution of a will by post

1.   Write ordinary signature (in biro) where indicated.

2.   Each witness must then in the practitioner’s presence write his or her name, address and occupation.

3.   It is vitally important not to choose witnesses who are going to benefit in any way under the will or who are married to or are civil partners of any beneficiary as this would render any gift null and void.

4.   Insert the date in the space provided above the signature.

5.   Do not staple the will to a covering letter and likewise do not attach a letter to the will with any paper clips. 

All of these ‘do’s’ and ‘don’ts’ are vitally important if any will is to be admitted to probate unchallenged.

Any queries at all, no matter how minor or trivial they may seem, about signing a will, should be addressed to the practitioner, by telephone.

IN WITNESS whereof I have hereunto signed my name this           day of         2020

Property Registration Authority (PRA) services

All of the PRA public offices were closed from Monday 16 March 2020 until further notice.

However, the PRA has prioritised their work to ensure continuity of essential services.

It is their intention to maintain essential services for as long as possible and they will continue to receive applications lodged by post/DX. 

Feedback

The PRA has requested feedback in exploring any steps they can undertake to help mitigate the effect of these unavoidable restrictions, both in the short and longer term. Input can be forwarded by email to Eamonn Morris.