South Australia seems to be way ahead of other states and territories in Australia when it comes to handling information about managing the completion of wills at this time. Somewhat surprising considering that the completion of wills is going to be an imprtant issue for many in the upcoming months , especially the elderly and health workers
Here’s the letter from the SA Law Society and they are to be congratulated for their clarity and especially with regard to highlighting recording wills on online video services which we suggest will have to become to norm moving foward and government restrictions on movement undoubtedly become stricter if they wish to contain this particularly virulent disease.
Wills – Execution risks – COVID-19
26 March 2020
Dear Legal Practitioner
The Law Society has been contacted by many practices who are concerned about Wills matters involving existing clients who are yet to execute documents in light of the current COVID-19 environment. Some risk considerations that may assist are as follows:
- Consider if you can act in a new matter?
As a paramount consideration, practices should consider the health of their staff. If you or your client is required to self-isolate or be quarantined, or you are following government recommendations to minimise contact and especially if not undertaking the usual client face to face interaction, then some risk considerations and precautions may be:
- Declining to act. If you decide not to take instructions, send a letter confirming that no retainer has been entered into (see Letter 4A – No Immediate Will Acknowledgement letter) in the Wills and EPA Risk Procedure Pack which can be adapted for the specific circumstances; or
- If instructions have already been taken to prepare the Will, a new Letter to Client (P9) – Remote Will Signing and Client Execution Checklist that may assist for clients affected by the pandemic will shortly be available. Please note this letter is only for use during the pandemic and assumes the concurrent use of relevant Wills Risk Pack tools. Practitioners should be aware that giving a client the opportunity to self-manage a Will execution is risky and these new tools cannot remove all of that risk but may provide some level of risk reduction. Consider any other options in your specific case that may be available to manage the process before using, especially if not undertaking the usual client face to face interaction. Even though usual arrangements may have changed, the standard required to effect the intentions will probably not change.
- In summary, the issues that will be dealt with in this new material are the steps to be taken to facilitate the Will being signed eg:
o Sending the documents to the client with instructions about how to sign it so it is a valid Will;
o Advising the client about what will happen if a new Will is not in place;
o Advising that if the client is unable to get the Will validly signed (new Checklist Part A), then they have the option of signing the Will without it being witnessed (new Checklist Part B). However if they choose this option, then outline the risks including that:
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- If the client dies, an application to the Court will need to be made to have the Will declared to be their last valid Will;
- They will need to inform the practitioner that they have signed the Will with the intent that it is to operate as their last Will;
- If all else fails consider the risks (and advise the client) taking into consideration the following risks:
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- that the client’s capacity may change after the initial consultation (prior to sending the Will for execution);
- the risk of delay in having the Will executed; and
- the evidence required to support an application to the Court pursuant to Section 12(2) of the Wills Act and consider if that could be managed with the practitioner by video link to be followed up after the current situation abates.
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- If continuing to act in an existing matter- consider the risks of having the Will executed without your involvement.
Any time a Will is sent externally for execution the risk that the Will be lost/incorrectly executed/not executed at all is increased. If circumstances dictate that a Will must be executed without your involvement, consider how you attempt to mitigate those risks and can be satisfied about risk factors such as capacity, undue influence, duress, etc and whether these are adequately documented on file if instructions have already been taken.
If circumstances exist where a practitioner has not been able to form a view about matters which would go to the validity of a Will (such as, duress, capacity) then the practitioner should still do their best to facilitate the execution of a new Will (see Point a. above) whilst warning the client that when circumstances permit to see you face-to-face to take steps to satisfy themselves that your client’s testamentary intentions will be effected.
- Is a Video Call a good option for new matters?
Before taking instructions, consider whether your practice is in a position to complete the work (i.e. are staff available, can you meet the client). If acting for new clients and taking instructions via a video call, consider the increased difficulties that can become apparent over that format. That format is likely to impair your ability to undertake a proper Verification of Identity (“VOI”) process, and satisfy the relevant capacity assessment and is not recommended for VOI or will execution. The risks are that:
· Video quality might impact on the effectiveness of communication and ability to determine client capacity;
· Duress might be harder to spot; and
· Counterfeit documents might be harder to identify and scrutinise.
Taking instructions via video-call where those instructions are later confirmed in an environment without those risk factors may be acceptable.
At the moment, in the absence of a government mandated “lock down” (but always subject to quarantine and self-isolation requirements) there appears to be no reason why small in-person meetings cannot continue to occur as long as the appropriate social distancing measures are strictly adhered to.
For practitioners in suburban or regional locations consider if a drive-in option (whilst taking appropriate hygiene and distancing steps – refer to SA Health’s advice) might help manage some of these face to face issues through a clear car window. Remember to retain photographic evidence.
- Getting Off-Risk for Outstanding Wills
Consider the use of the Letter Chasing Instructions (P2) in the Wills and EPA Risk Procedure Pack as a basis for an off-risk process where clients have been delinquent in executing a Will ready for execution previously sent to them. This letter should be amended as appropriate in each individual circumstance, outlining the relevant risks for that client should they not take steps to finalise their Will.
In all cases, the Society recommends that practitioners maintain a register of Wills/other documents that are signed during times of self-isolation/social distancing so that after things return to “business as usual” they can contact those clients to make sure that there are valid documents in place.
Kind regards
Grant Feary
DEPUTY DIRECTOR (LAW CLAIMS)
