Lockdown, social isolation and undue influence

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Article

01 June, 2020

For a Will to be valid, there are various conditions that must be met. These conditions include the Will being correctly executed by being signed and witnessed, but there are other factors to consider. The testator must have testamentary capacity at the time of execution and have knowledge and understanding of their estate. They must know the effects of making a Will and be able to identify the beneficiaries. The testator must also not have been unduly influenced, that is coerced, in any way. Coercion is different from "persuasion" and an example of it would be when a testator makes a Will that differs from his or her own wishes because he is being put under pressure or being abused.

When a Will is drafted by a solicitor, they will usually meet with a testator alone, so that they can properly assess whether there are any signs of undue influence and that the testator has full testamentary capacity. If a testator is elderly or infirm, the solicitor should seek to have the Will approved and witnessed by a medical practitioner and this would then be recorded. This is called the "Golden Rule".

During the Coronavirus pandemic, more people have been considering their future and making Wills. While it is of course always wise to consider these things, there are challenges presented by the Covid-19 crisis whereby it is more difficult for solicitors to visit clients in person, and access to GPs and other medical practitioners is more limited than in ordinary circumstances. This is particularly true for elderly or otherwise vulnerable people, as many have to self-isolate and may be alone, or be reliant on only one person for assistance for some time. They may struggle to use the internet or other technology, and so be unable to use video calling or engage in virtual meetings.

These extraordinary circumstances of Covid-19 may therefore increase the risk of Wills being prepared without the presence of a solicitor or other third-party professional, and without any assessment of the testator's capacity or the circumstances under which the Will is prepared and executed. It may be that a homemade Will is prepared and the testator's lack of capacity goes unnoticed. There may be a greater risk to vulnerable or elderly testators if they have limited access to their usual support network or outside agencies. This isolation can make them more vulnerable to coercion and pressure from individuals with ill-natured intentions, and they may make or change their Will out of fear of being abandoned and left to fend for themselves if they refuse to comply.

If there is a suspicion that a Will has been prepared without capacity or that the testator has been forced into making the Will, the Will can be challenged. Our team can assist with this by carrying out thorough investigations into the drafting and execution of the Will, and obtaining important medical evidence that could indicate a lack of capacity. If there are suspicions that a Will may have been prepared fraudulently, with the testator's signature being forged, we can instruct handwriting experts who can provide evidence. We can then advise you on the legal position and whether a challenge to the will is likely to be upheld by the courts.

For more information contact Sarah Corbridge in our Contesting a Will department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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