In what is an unprecedented time, it is important that you can continue to manage your personal legal affairs in the most efficient way possible and feel supported in doing so. Lawyers throughout Scotland – and indeed globally – are thinking fast about ways in which various deeds can be finalised whilst adhering to the social distancing rules amidst the Coronavirus pandemic. 

The Law Society have confirmed that the completion of Wills falls into the definition of necessary work. You should, therefore, not feel like you have to wait for any period of time to complete your Will. Indeed, we are prioritising the preparation of Wills for our clients and ensuring that these can be finalised and signed as soon as the testator is ready.

This blog considers how we can come together to ensure the completion of Wills and Powers of Attorney remains uninterrupted, at a time when we are all encouraged to stay apart.

Wills

The general rules for signing Wills in Scotland is that they must be signed at the foot of every page in the presence of one independent adult witness. The witness should ideally watch the testator sign and then add their own signature to the final page of the Will, together with the place/town and date of signing. 

Given the social distancing rules, it is not always possible for an independent adult witness to be present. This is unless you happen to live with someone to whom you are not related and is not a beneficiary of your Will e.g. a flat mate. 

The rules for signing English Wills create slightly more problems, as although the testator only requires to sign the final page (not every page, like in Scottish Wills), two independent adult witnesses are required.

Some of the options available are:-

1. You could sign the Will without a witness being present – although not ideal, the courts would still be able to accept an unwitnessed Will as valid as long as the solicitor can prove that, at the time of signing, the testator had testamentary capacity and testamentary intention. This would normally require affidavit evidence to be provided by someone familiar with the testator’s signature.
2. Your solicitor could post you two copies of the Will to sign (or you could print two copies of the Will which your solicitor sends you by email) – you could sign one copy of the Will without a witness present and sign the second copy with a witness, once the social distancing rules have been relaxed. This means that you are not delaying on signing your Will and the unwitnessed Will can simply be destroyed once the second Will is witnessed.
3. Video link – the Law Society of Scotland have now issued temporary practical guidance suggesting that Scottish Wills can be witnessed by a solicitor using video technology, such as Skype or Facetime, but preferably some form of technology which allows the video call to be recorded for record keeping purposes. For Scottish Wills, the solicitor should witness you signing on each page, or arrange for someone else on the video call to do so. You should then post the principal Will back to the solicitor who should sign it as witness as soon as it reaches them.  Of course, this is not always possible to do promptly for the vast majority of solicitors who are now working from home without access to the office mail.  In addition, there is not yet any official guidance or confirmation as to whether e-signatures are acceptable under the current law.  The position for English Wills also remains unclear and the Law Society are asking for temporary legislative measures to provide an answer. 
4. Ensure the witnesses remains 2 metres away from you – this has also been suggested as an option although there are concerns that the Coronavirus can survive on paper for up to twelve hours, so there is potential for it to be transferred between people simply from handling the Will.

Scottish Powers of Attorney

Scottish Powers of Attorney all contain a Certificate of Capacity which must be signed by one of the following:-

• A practicing member of the Faculty of Advocates;
• A practicing solicitor who is registered to practice law in Scotland; or
• A UK registered and licensed medical practitioner.

Scottish Powers of Attorney must also be witnessed by an independent adult. The legislation that governs the signing of Powers of Attorney requires that the solicitor/doctor certifying capacity has interviewed the granter immediately before the granter signs the document. 

The Law Society of Scotland have suggested the following Skype or Facetime video call procedure can be adopted to satisfy this legislative requirement if a face-to-face meeting is not possible:-

1. The solicitor should provide the granter with the Power of Attorney in advance, either by post or by email.
2. The granter of the Power of Attorney should not sign the document in advance of the interview.
3. The granter must show the solicitor via video conference that the document is unsigned prior to the interview.
4. The interview will take place during the video conference in the usual manner.
5. If the solicitor is satisfied that the granter has capacity, then, at the solicitor’s request, the granter should sign the document and the witness should sign as appropriate. The granter should then show the solicitor the signed copy Power of Attorney document.
6. The granter should then return the principal signed document to the solicitor as soon as possible. Once received, the solicitor should incorporate the Certificate of Capacity into the document. It should be signed by the certifier on the same day as execution by the granter.

Whilst it is not essential that a Power of Attorney is witnessed because it becomes self-proving once it has been registered by the Office of the Public Guardian, it would be useful for the Power of Attorney to be witnessed by someone independent, if this is possible within the parameters of the social distancing rules.

English Lasting Powers of Attorney

The English equivalent of a Power of Attorney, known as a Lasting Power of Attorney, looks like a very different document and as such has its own set of signing requirements.  There are no current guidelines in place but temporary measures are being considered, such as reducing the number of witnesses required and allowing video witnessing.  There are hopes that a decision will be made promptly to ensure individuals who finalise their Lasting Power of Attorney without a witness being physically present do not run the risk of their deeds being invalid.

Contact Us

Murray Beith Murray remain committed to providing you with a full legal service during these extraordinary circumstances. If you have any questions about the issues covered here, or if you would like to discuss estate planning with our solicitors, please call us on 0131 225 1200 or complete our contact form.