News

Vanina Wittenburg discusses probate and paper-based documents during the COVID-19 pandemic in WealthBriefing

  • June 15, 2020
  • By Vanina Wittenburg, Associate

This article was originally published in WealthBriefing and can be accessed here

As private client lawyers, we have been faced with a host of practical issues during the lockdown. Unlike other lawyers, many of the processes we deal with still very much revolve around paper, wet signatures, witnessing and the post. None of this is easy to deal with in a time of social distancing and working remotely from the office.

As we mostly provide personal services to individuals, there has been little push for legislation to be reformed. Sure, our working lives have been made much easier by being able to communicate with clients by email and share documents electronically, but the fundamentals of our jobs have remained unchanged for decades.

For example, the rules for validly signing a Will are those set out in the Wills Act 1837. In the main, they have not changed in 183 years. A Will must:

  • be in writing (this does not include electronic formats);
  • be signed by the person making the Will, or the testator (or can be signed by another at the testator’s direction, in the testator’s presence);
  • be signed in the presence of two witnesses; and
  • be signed by the two witnesses in the presence of the testator.

The additional complication is that the two witnesses must be independent, i.e. they cannot be anyone benefiting under the Will, or the spouse of anyone benefiting under the Will, as any disposition under the Will to that witness or their spouse will fail. Most people won’t be able to find two independent witnesses at home – and therefore external witnesses will have to be found. Moreover, it has been confirmed that witnessing via video does not comply with the legislation.

The above requirements are difficult to fulfil when complying with government guidance on social distancing – and this has led to the witnessing of Wills through windows, telephone boxes, outdoors on car bonnets, and so on. None of these are ideal solutions.

One alternative would be to allow witnessing of a Will via video. This has been temporarily introduced in Jersey, and reports note that it is proving successful. It is difficult to see how witnessing a Will via video is any different to witnessing a Will through a window, which case-law confirms is in compliance with the law. Nonetheless, this is not currently accepted practice.

There is some discussion about whether formalities more generally should be relaxed, and other jurisdictions offer some alternatives, such as allowing Wills to be handwritten with no witnesses, or allowing Wills to be prepared, signed and stored electronically. The issue with these alternatives is that they do not offer the same safeguards as our current system. A handwritten Will that has not been witnessed can be made at home, and this offers little protection against undue influence. It may also lead to the testator not fully considering the implications of what he is doing, particularly if he has not sought any legal advice. Undue influence could also be an issue for electronic Wills, with testators not meeting with a lawyer face-to-face to discuss the issues. Moreover, cyber-security is increasingly a key area of risk for lawyers, and would certainly present a risk when making a Will – how do you ensure that no third party is able to access and change the Will?

A potentially better alternative would be to allow courts to accept a Will to probate even if the formalities have not been complied with. This would require the parties to present evidence as to the testator’s intentions and the circumstances in which the Will was made. This would offer better protection against undue influence, although much would depend on the evidence available, and it could also be an expensive process, as it would require the parties to go to court. It could also potentially lead to increased litigation.

It therefore seems that there are some very valid reasons to keep the current system. Nonetheless, this is an area of law ripe for discussion, if not change. There is little doubt that it will eventually need to be reformed as the way we lead our lives – whether because of the pandemic or technological advances – changes.

There is less of an argument for maintaining current practice in relation to other processes, particularly the administration of estates. Currently, inheritance tax returns and probate applications must be signed by the personal representatives before they are submitted to HM Revenue & Customs (HMRC) and the Probate Registry respectively. These rules have been temporarily relaxed during the lockdown so that all the required forms can be signed electronically (including typing the executors’ names where their signatures should be), with the simple addition of a declaration by the professional acting that the executors have reviewed and accept the information provided. But this begs the question of why these documents need to have wet signatures at all, lockdown or not, particularly when applications are made by professionals on the executors’ behalf.

A more complicated issue is how to deal with the various requirements for original documents. When applying for probate, the original Will (and any other relevant original documents) must be sent to the Probate Registry. As most of us are now working from home, with Wills and other original documents safely stored away in safes in our offices and in safe storage providers across the country, the number of probate applications during the pandemic has steadily decreased. This will likely mean a huge increase in applications once lockdown is lifted, and with Probate Registries already suffering with long delays prior to the pandemic, this spells disaster for probate applications in the months to come. The Probate Service has confirmed it has trained additional staff to deal with probate applications after lockdown, but it remains to be seen whether this will be effective in light of the recent teething problems of the newly centralised Probate Service.

Regardless of the number of applications, this should make us think whether such reliance on hard copy, original documents should continue, or whether we could deal with this differently. It is interesting that a number of investment managers now accept copies of death certificates, Wills and grants of representation ‘certified’ by a solicitor by email. Here, too, there may be issues to consider in relation to cyber-security; but, that is no reason why we should not explore how technology could be used to our advantage.

One obvious technological improvement to the estate administration process, which has surprisingly not been mentioned by HMRC or the Probate Registry yet, is to increase communication by email. HMRC currently only communicates by post or telephone; and use of email at the Probate Service is also limited. This seems particularly absurd in the current circumstances.

It is clear that the lockdown has presented us, as private client lawyers, with some difficult practical issues. We can only hope that once lockdown is lifted, we do not simply revert to the old ways of doing things. Now is the time to open up the discussion as to how we should change the ways in which we operate, and in some instances use technology, so that we are not faced with the same problems again in the future.

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