It’s no secret – the Coronavirus (COVID-19) pandemic has posed several challenges to almost every aspect of our lives. The Wills and probate industry is no exception.
Processes, laws and timelines have all been pushed to their limits over the past few months as we navigate through this global crisis. Things that we have all been used to as the ‘norm’ such as witnessing a Will or bidding farewell to a loved one at a funeral were no longer as straightforward as usual.
Let’s take a closer look at a few areas that were most impacted during these unprecedented times.
Drafting and executing a Will
Section 9 of the Wills Act 1837 clearly states the requirements for having a valid Will:
It must be in writing
It must be signed by either:
the person making the will (the ‘testator’); or
another person in the presence of the testator and at the direction of the testator;
It must be signed in the presence of two or more independent witnesses who:
are present at the same time (i.e. they are both present when the Will is signed and see it being signed); and
each attest and sign the Will in the presence of the testator.
With social distancing and self-isolation measures in place, these requirements quickly became difficult to follow as most people spent the COVID-19 lockdown either on their own or with a family member or a beneficiary named in the Will; neither of which can be a witness.
This led to a series of legal questions about whether the word ‘presence’ could be extended to digital presence (i.e. using video conferencing software such as Zoom or Skype) and also whether digital signatures would be accepted under these exceptional circumstances. With the risk of fraud that this could pose, there were clearly debates to determine what, if any, flexibility would be accepted.
In Scotland, the guidance on witnessing the signing of a Will was temporarily changed to allow a Solicitor to act as a witness via video conference, as long as they were not appointed as Executor of the estate directly or through a Trust company. Once it is determined that people can meet safely once again to witness the signing of a Will in person, it is likely that this temporary measure will no longer be acceptable.
In England and Wales, there has been no relaxation of guidelines meaning that the strict requirements of the Wills Act were expected to be followed in order to have a valid Will. The only alternative options in place were:
Witnessing through a window: Based on case law (Casson v Dade (1781)), this could still meet the requirements of the Act.
Creating a deathbed gift, or donatio mortis causa.
Preparing a letter of wishes: While it is not legally binding, the expectation is that the family will follow its instructions after death and/or if someone took the risk of utilising the remote witnessing of a Will via digital means.
Registration of death
Prior to the COVID-19 outbreak, all deaths needed to be registered in person at the local register office where the deceased lived. However in light of social distancing measures, this process became much more flexible.
With the implementation of the Coronavirus Act 2020, death registration appointments can now take place over the telephone. There was no change to timelines so deaths must still be registered within 5 days (or 8 days in Scotland). Provisions were also put in place to accommodate scenarios where a medical professional was unable to sign the death certificate.
Probate application process
The probate process is often not swift. At the start of the national lockdown, there was a decline in Grant applications, likely attributed to Executors being unable to obtain the documents required to accompany the application, such as original Wills kept in secure locations that suddenly closed. Naturally, once contingency measures were put in place to allow more access to documents, a sharp increase in applications was seen. This spike, combined with office staff needing to work remotely and probate typically being a paper-based process, inevitably, the delays started. The Probate Registry states there is currently a four-week turnaround time, however reports of waiting between three to four months from probate application to receipt of the Grant have not been uncommon.
To accelerate this process, the Probate Registry now accepts electronic signatures and has been urging people to utilise their digital service to eliminate much of the post and paper that causes administrative delays. Estate administration professionals are able to email probate paperwork to clients that they can return electronically as well. However, it’s important to note that it is still necessary to send documents, such as original Wills, via the post.
Additionally, the Probate Registry now accepts a legal statement (requiring only a signature) instead of statements of truth or affidavits (which must be sworn in the presence of a Solicitor or estate administration professional).
As you are likely aware, estate administration involves more than applying for the Grant of Probate. In addition to the probate challenges previously mentioned, there have been other areas where the estate administration process has been affected by the pandemic.
To date, over 45,000 people have passed away due to COVID-19 in the UK. For each of these individuals, their medical notes needed to be quarantined for 14 days after their death to avoid any viral transmission via the paper. As a result, obtaining the death certificate is often delayed. The death certificate is usually one of the documents required by financial institutions and local authorities after they are informed of a death.
As a workaround, PDF copies of the death certificate have been issued and accepted as a temporary measure to facilitate and accelerate the process until originals can be sent.
Bank accounts and financial assets
Many financial institutions are able to function with minimal change to their processes. However with adjustments to remote working, increased staff absences and other difficulties associated with shifts to more digital procedures, some delays were experienced, especially at the start of lockdown.
Many kinks have been ironed out and funds are able to be received and debts paid fairly easily. However, it’s worth mentioning that most institutions ask that debts are paid using bank transfers in lieu of cheques for easier verification and processing.
The marketing and selling of properties across the country were halted once lockdown was implemented at the end of March 2020. As a result, properties that needed to be sold as part of an estate had to follow strict government advice in order to do so with the lowest risk of virus transmission – and in many cases sales were simply delayed as the guidelines were hard to comply with or not possible.
When a property is unoccupied, insurance policies usually require regular visits to the property for security checks, waste removal, clearing of post, etc. Under lockdown restrictions, it became difficult or impossible to comply with this in many circumstances.
A number of insurers recognised and sympathised with this allowing for relaxation of this policy requirement if individuals were unable to comply. Anyone affected by this was urged to contact their insurer or broker as soon as possible to ensure they would not be breaching this requirement during lockdown.
As discussed above, Will creation, Will execution, the probate process and estate administration were not halted during the COVID-19 pandemic, but as everyone adjusted to a new way of living and working, delays were the biggest hurdle to overcome.
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