As we are all experiencing, life as we know it can change in the blink of an eye and we are now having to adapt to the current difficult circumstances. The crisis is focussing people's minds on putting a Will in place or updating an existing Will.
As we all adapt to our new way of life, we can reassure you that we are still able to assist you with advice regarding Will.
The answers to some frequently asked questions below provide guidance for some of your concerns.
The information below is accurate at 31 March 2020 and we will endeavour to provide updates as the circumstances change.
Q: I don’t have a Will – is it too late to instruct a solicitor to put one in place in the current lockdown?
No, it’s not too late.
Yes, you can instruct one of our Private Client team in the current lockdown.
We can still take instructions and prepare a Will on your behalf. However, the current lockdown does cause some practical and logistical problems.
First, solicitors are under certain regulatory obligations to verify the identity of clients before conducting any work. Practically speaking, obtaining and verifying ID in the current climate will require a more flexible approach. In accordance with Law Society of Scotland Guidance, it’s possible to make use of electronic verification of up-to-date ID by video conference and scanned coloured copies where appropriate and possible.
Second, as no face-to-face meetings can currently proceed, instructions can be taken through discussions over a video conference or telephone call.
Third, although Will preparation is possible with the use of modern technology to take instructions, using electronic documents and emailing you the final version, for a Will to be valid in Scotland it requires to be printed and signed on every page. This should not pose a problem if you are able to print your Will at home. However, for those with no access to a printer at home, and with local libraries or internet cafés closed it remains a hurdle.
At present (31 March 2020) there is no workaround in place, however we will keep our clients up to date with any legal developments.
Q: I’m currently self-isolating with my close family members – can they witness my Will?
In Scotland, an adult independent witness must witness your signature(s) and sign on the last page of the document. Ideally the witness should not be an individual named in the deed, or someone who will directly or indirectly benefit from your Estate on your death.
However, given the current ‘social distancing’ guidelines we appreciate it may not be possible to source an independent witness, and you may have to use a close family member to act as a witness. It is better to have a witnessed Will rather than an unwitnessed Will.
Any Wills witnessed by family members or future beneficiaries can then be re-signed following relaxation of the current lockdown.
If is impossible for you to access a witness there is a workaround provided we can see you sign your Will on a video call.
G: I don’t have a Will – is a handwritten Will or a typed document or email sufficient?
As touched on above, Scots Law does not currently recognise an electronically signed ‘digital will’ or an email/text as being a valid testamentary deed. In the current circumstances, if you are unable to instruct a solicitor to prepare a Will on your behalf, a handwritten Will is the best alternative. For such an informal writing to be considered valid in Scots law there are a number of requirements, including being signed on every page and witnessed.
Our Private Client team will be able to discuss these requirements more fully with you.
Q: I have a Will however it is not up to date and does not reflect my current wishes - can I, and should I, update it in the current circumstances?
The current pandemic has prompted many people into seeking to update their Will, and our Private Client team can advise on how to go about this in the current lockdown.
If the change to your Will is relatively minor, it may be possible to put in place a Codicil or a letter of wishes to make these changes.
Alternatively, if the changes you wish to make to your Will are more substantial, the cleaner and preferred approach would be to prepare a fresh Will, with the same practical difficulties as outlined above.
You can contact a member of our Private Client team to discuss these options.
Q: I’m currently self-isolating and do not have access to video calling - can I instruct a new Will or change my current Will?
If you are not “tech-savvy” and are unable to take part in a video call consultation, please contact a member of our Private Client team to discuss your options.
Q: My elderly relative lives alone and is self-isolating without access to the internet - can I instruct a Will on their behalf?
Although you could certainly make enquiries on behalf of your loved one, you are unable to instruct a solicitor on your relatives’ behalf. Even if you have a registered Power of Attorney for your relative, it is not possible for you to instruct and sign a Will on their behalf.
If an elderly relative would like to put a Will in place, please contact a member of our team to discuss this.
If
you would prefer to speak to one of our team about your specific circumstances,
we are here to guide you through this difficult time. You can contact a member
of our Private Client team either by phone or email as usual and we’ll assist
with your Will.
Visit our COVID-19 support hub.
