The Law Society has prepared very helpful guidance to assist Solicitors making Wills in the extraordinary circumstances in which we find ourselves as practitioners and legal advisers. We have decided to repeat a lot of this information in this BLOG, so that clients will be familiar with what procedures are expected when they contact their solicitor to make their Will.
The following guidelines have been suggested for solicitors in relation to drafting and executing Wills during this period of self-isolation and social distancing:
Where possible, solicitors are advised that instructions should be taken over the phone and the draft Will sent to the client by e-mail for approval and amendment before any decision is taken by the client 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 the solicitor and their employees. The telephone will work fine 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 posting back to the solicitor. If it is not intended that the draft Will 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 clear on the circumstances in which the Will must be executed: the Will must be signed or their signature acknowledged by the testator (the person making the Will) in the presence of 2 witnesses, who must then sign in the presence of the testator. It is possible for the testator to sign in the presence of one witness and subsequently acknowledge that signature in the presence of a second witness. The Will must be signed by the testator and two witnesses to be valid.
Is it necessary to attend at the solicitor`s Office?
The Law Society advises that it is a decision for each solicitor 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.
If clients want to attend at the solicitor`s office, the following protocol is advised: The client enters the solicitor`s office and is brought (at a safe distance) to the 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 the presence of the solicitor and in the presence of one other witness. Having signed, they can step away to a safe distance, then the solicitor can sign using their 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 the client wishes, the solicitor can post or e-mail a copy of the signed will to them.
If the client cannot attend at the solicitor`s office?
Where the client is unwilling or unable to attend at the office the solicitor must consider whether on this rare occasion it would be appropriate to send the Will out to the client by post or whether the solicitor would consider travelling to the client’s home to have the Will executed.
Attending at a client’s home
If the solicitor is travelling to the client’s home to execute the Will, the following protocol is suggested:
The solicitor 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 the solicitor (assuming there is no Charging Clause in the Will). The solicitor 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 solicitor 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 the solicitor and the other witness. The solicitor 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 the solicitor arrives, they can sign on the dashboard of their car witnessed by the solicitor 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. The solicitor may consider keeping the Will in a separate envelope for at least three days to reduce the possibility of viral transmission.
The solicitor should attend to the drafting and execution of an Affidavit of Attesting Witness as soon as practicable after the execution of the Will.
Payment of Costs
Costs should be agreed up front and paid to the solicitor on attendance or in advance to the solicitor`s Bank Account. There may be an additional travel charge. This depends on the time and distance involved and the witness requirements.
If it is agreed that the solicitor will post the Will out to the client who will then organise their own two independent witnesses the solicitor 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.
The solicitor may consider including an A4 sized stamped addressed envelope for the client to use to post the Will back to the solicitor. The solicitor should also ask the client to confirm when they have posted the Will back, so that the solicitor knows to expect it. Again, the solicitor may consider not opening that envelope for a number of days after receipt.
‘Skype’ or ‘Facetime’?
If the client has broadband and wi-fi, it may be helpful if they were to ‘Skype’ or ‘Facetime’ the solicitor`s office while attending to the execution of the Will. That way, the solicitor can ensure that things are done correctly and then the solicitor would be in a position to swear an Affidavit of Attesting Witness, if necessary.
Suggested instructions to include with solicitor`s letter to client
The Law Society has also suggested instructions to include with the solicitor`s letter to the client client and a suggested signature, attestation and witnesses signature clause for inclusion in the Will, as detailed below:
Suggested instructions for execution of a Will by post
1. Please write your ordinary signature (in biro) where indicated
2. Each witness must then in your presence write his or her name, address and occupation in the places where I have indicated
3. It is vitally important that you do not choose witnesses who are going to benefit in any way under your will or who are married to or are civil partners of any beneficiary.
4. If you were to do so, the gift to them would be null and void.
5. Do not forget to insert the date in the space provided for this above your signature.
6. Finally, please do not staple the will to your covering letter and likewise do not attach your letter to the will with any paper clips or such like when returning it to me. In other words, return it to me in exactly the same condition as it now is.
stating to the client that it must be appreciated that all these ‘do’s’ and ‘don’ts’ are vitally important if the client`s Will is to be admitted to Probate unchallenged.
By adhering to these very helpful guidelines hopefully we will all manage to care for our loved-ones through these very difficult times.
For further information on making Wills and related legal matters, contact:
Morgan McManus Solicitors
Phone No: 04751011