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.