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Shared & Halved: disputed wills and trusts

As part of our series of webinars providing support during the current COVID-19 pandemic, on 12 May 2020 Adam Draper and Tara McInnes from our disputed wills and trusts team joined Tom Dumont QC and Dr James Warner in discussion of the impact of COVID-19; on will challenges and claims against estates. 

Please see the brief summary below of the key points discussed during the webinar.


Increasing disputes

  • COVID-19 has increased the numbers of deaths by comparison to the 5 year average.
  • At times of crisis people may act unexpectedly – resulting in unusual wills.
  • The economy has been hit hard as a result of the pandemic. Reduced financial means might result in an increase in challenges.

Threats to validity of wills

  • More clients will be seeking legal practitioners’ help with will making with increased urgency.
  • Practitioners may decline ‘risky’ instructions, or have insufficient time to devote to the client.
  • Individuals may take matters into their own hands.

Want of due execution

  • The Wills Act sets out formalities for executing wills especially regarding witnessing wills.
  • Lockdown/social distancing might make it difficult for witnesses to be physically present.
  • There will be difficulties with witnessing wills, which will need to be at a distance.
  • Concerns over what distance is acceptable and constitutes valid execution.
  • A solicitor who is not present cannot guarantee correct execution.
  • Execution by video conference will not be valid.
  • Currently no suggestion of relaxing requirements for due execution in England and Wales.
  • Witnesses also need to have sufficient capacity to understand the act they are witnessing.

Testamentary capacity

  • COVID-19 impacts capacity:
    • In very rare cases of COVID encephalitis the brain is directly affected;
    • The effect on the respiratory system may cause hypoxia-related confusion;
    • Interventions made in hospital may cause delirium;
    • There can be a psychological impact caused by fear of rapid death and/or near death experience.
  • Self-isolation can impact capacity: Social isolation may lead to depression.
  • Grieving a lost loved one can impact capacity: grief can cause affective disorder.
  • Practitioners can take instructions remotely (video conferencing), but nuances may be lost.
  • The Golden Rule will be more difficult to observe – remote capacity assessments miss subtle abnormalities, and the assessing doctor is not physically present to witness execution.
  • Preparing a will at speed may mean medical notes are unavailable .
  • Assessing doctor cannot be as sure of his/her opinion as on a face to face assessment:
    • Some disorders are not immediately apparent in video conferencing:
      • Frontal lobe paradox - frontal lobe injury may not be demonstrable on superficial discussion;
      • Psychosis is often hidden unless the right questions are asked.
    • Cognitive functioning assessment by video is 90% effective.
    • Assessing doctor can’t investigate testator’s living environment.
    • Assessing doctor can’t experience countertransference – their own internal emotional response to the person in front of them.

Undue influence

  • Those who are self-isolating at home may become more reliant on an undue influencer.
  • Relatives might be unable to visit their infirm or elderly family members meaning increased access by those wishing to take advantage.
  • There is often a crossover between compromised capacity and undue influence.
  • Undue influence is usually very difficult to prove.

Inheritance (provision for family and dependants act) 1975

  • Those with need will be more numerous due to the financial implications of COVID-19, claimants are more likely to ‘have a go’ as a means of gaining some resource.
  • Greater financial need is likely to result in more deserving claimants.
  • Cohabitants and adult children seem likely claimants where deceased dies unexpectedly and without making a will.

What should practitioners do to limit risk of claim

  • It seems likely that all types of claim will increase, but practitioners should:
  • Take detailed notes of instructions including observations of testator’s personal state and environment.
  • Include their reasons for benefitting some and not other beneficiaries together with any departures from previous wills.
  • Best advice is to make the best will possible now, and revisit in person as soon as allowed.
  • Video meetings to narrow scope for challenge.
  • If concerned, obtain the best capacity assessment possible.

What if a claim does arise?

  • Get the witnesses’ evidence of due execution as soon as practicable.
  • If capacity is in question, ask a doctor to review the medical notes.
  • Don’t be afraid of remote mediation:
  • It is cheaper, easier, doesn’t require travel.
  • Personal experiences are that it is effective and follows a similar pattern to mediation in person.
  • Face to face mediations will be preferable once permissible, but that need not be a barrier to prompt settlement.
  • Courts are committed to virtual hearings to see cases progress.Video hearings are preferable to telephone hearings but, again, nuance is lost.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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