Lindsay MacEwen: Making a Will or setting up a PoA is still possible

Lindsay MacEwen is a Senior Associate at Harper Macleod

At present we are all being challenged to find solutions to a whole new set of issues. Solicitors aim to service the needs of clients at all times, in particular when circumstances demand a prompt resolution. Among other things, that has meant finding practical ways to continue to help keep Wills and Power of Attorney arrangements up to date.

The lockdown has led to people having a go at jobs that have been put off – and some people may even be happy to try a DIY Will, instead of engaging a solicitor. Unfortunately, this often has unintended consequences, most notably that the Will might not being recognised as valid and the individual will be being treated as though they died intestate (without a Will). Fortunately, many solicitors are still here to help.

How can I ‘see’ a solicitor during lockdown?

Solicitors are able to take instructions in a variety of ways including over the telephone, via email or by video call. A draft can then be sent with a full explanation of the terms of the Will and our advice. Arrangements can then be made to discuss and sign the documents. This may be by video call, a meeting with appropriate barriers in place (maybe even through a window!) or some other method.

The requirements for a Will to be valid in Scotland are set out in section 3 of the Requirements of Writing (Scotland) Act 1995. It must be signed on every page and there must also be one independent adult witness who also signs on the last page.

What was usually a straightforward task is now complicated, as for many people having an impartial witness physically present with them at the time of signing will be impossible.

Therefore, the Law Society of Scotland has suggested that a solicitor can act as witness to a video call provided they are not excluded from acting as witness by virtue of being a nominated executor personally or as a director of a Trust Company.

The solicitor should use this opportunity to assess capacity of the client and whether any undue influence is being exerted on the client. As long as the solicitor has witnessed the person making the Will sign on every page, they can then legitimately sign as witness on receipt of the signed Will.

The Society’s view is that this would be considered to be “one continuous process” as required by the 1995 Act. The video of the testator signing with the solicitor viewing as witness would then be stored as evidence of the proper execution of the Will.

Power of Attorney

For a Power of Attorney (POA) to be valid, it is essential that a solicitor or doctor interviews the person making the POA (the granter) to ensure they have the capacity to do so.

Guidance issued from the Law Society of Scotland has suggested that we take instructions and send a draft for consideration. We then assess how the signing of the documents can best be completed depending on each set of circumstances. We could arrange for video-link so that the granter can be interviewed and also display to the solicitor that the Power of Attorney is not yet signed.

Once the solicitor is satisfied that the granter can do so, the granter would sign. It is not essential that a Power of Attorney document is 
witnessed as it becomes self-proving at the point of registration. However, it would be preferable that the document is witnessed by someone that has been included in the process via video-link, in the presence of the solicitor, provided they are not named as an attorney.

Solicitors are working hard to provide our usual services, taking all necessary precautions while continuing to work to the highest possible standard – just not within the usual office setting.

In the immortal words of the film Gregory’s Girl… “If we don’t see you through the week, we’ll see you through the window!”

Lindsay MacEwen is a Senior Associate at Harper Macleod