How to make a Will in England? Anyone Know?

How to make a Will in England? Anyone Know?

Course we do – it’s easy:-

Testator/Testatrix signs, watched by two witnesses who

  • Know the document is a Will (though they need not know exactly what it says) and
  • Are present at the signing and
  • Who will not be among the future heirs. (If they are named in the Will as beneficiaries the result will be that the legacy intended to be inherited by that witness will not pass, so will fall into the “residue” or into intestacy)

Then each Witness in turn, signs, watched by the other witness and by the Testator/Testatrix.

Simple as a simple thing, amazing anyone could ever get that wrong?

In England, it’s been done the same way since 1837 and you may have thought that we would know how to do it by now. Although plenty of times it’s still not done right, and I have written before about the many amusing and indeed inventive ways in which people have managed to get it wrong.

-Link Here- to earlier blog-

Of course, there is nothing amusing about the consequences of getting it wrong if it happens to you.

The thing about a Will is that typically a mistake is only found out when it’s too late to correct it. Because, well, you know.

Now we have coronavirus in our world. For the past too many months we have all been in lock-down. We have all been affected but perhaps those hardest hit in particular are those people who because of age or illness are most at risk. Which, to avoid euphemism means, – most at risk of death.

Many of the oldest and most frail people in England continue determinedly to remain indoors at home, secluding themselves from visitors. And whilst every adult in my opinion should hold a valid will most of course do not.

This CV-19 world is now a place in which everyone with any imagination has contemplated their own increased risk of early death. Dying this year, not in some comfortably far-off future. So it’s not surprising that a great many Wills are being made this year.

The problem being that now many of those people who want to make their Wills (because of fear of death) are also very unwilling to go to a lawyers’ office or to invite people into their homes to act as witnesses (because of fear of death) .

So the Law has been changed. Now, any Will made on 1st February 2020 or later is not invalid if the witnesses and person making their Will were only together “virtually”. Watching each other on ZOOM or Skype, Teams or such. On a Computer tablet or phone.

Here is – the government guidance link-

So that’s alright. By the way: – How is your old Mum on her computer? Does she tweet? Into WhatsApp and TikTok? Thought not.

OK I know we are not only talking about older people, but they will be in the majority.

And remember, the old lady computer wizard will need two witnesses. And as stated above, they must not be people who will benefit under the will. So no children for example. So two friends then. Probably two more old ladies with good tech skills then? Not a problem in sight.

The national understanding of those who report about this in the press is that now Wills in England are to be made in a different way, with the three parties to the signing and all of them online.

This is the way stuff works isn’t it. The actual intention is that video-witnessing whilst permitted should be a last resort. Used only in exceptional and unusual circumstances. But I suspect no-one will be listening to that. Humans love to rush into new stuff.

Carl Sagan died last century. Was he wrong to say, before iPads and smart phones even: – “We’ve built a society on science and technology in which nobody understands anything about science and technology, and this combustible mixture of ignorance and power sooner or later is going to blow up in our faces.”?

I would suggest that the model permitted under the new rules will be too difficult for the majority of those trying to do this, if they try to do it without a lawyer. How will the attestation clause be written to reflect what has happened so that the Probate Registry will not be raising difficult requisitions after the death?

How many people persist in believing that being a witness means only – signing my name?

The guidance says that the original document once the will-maker has signed it “shall be taken for the two online witnesses to sign ideally within 24 hours“. Taken, taken by whom? Everyone is isolating. Posted then? How many daily collections do you have?

Is this a Jane Austen or Wodehouse novel where I decide to invite you to dinner tonight and so I post the invitation at nine a.m. and get your posted acceptance by three p.m. so I can send the servants to buy the food in time for the feast?

And if the two witnesses live 500 miles from you and 500 miles from each other? And if the broadband connection is a bit tricky on the day. And when you get it, the other witness is not available to zoom. Or one witness simply signs and forgets to zoom the testator.

So the reality in my opinion is that too many mistakes are going to be made unless this kind of witnessing is done as an alternative only to the traditional way – where the will maker goes to the lawyers’ office where the two lawyers act as Witnesses.

I can just about see it working like that. So that way, the video-conference is between the signer at home and the two lawyer witnesses at their office, then the signer by some means gets the paper to the lawyers then a second zoom meeting where the signer confirms the signature is genuine and watches the witnesses sign it together.

Another point I might make is that in my view the new model also fails to reflect the “last minute” nature of the way Wills are often made.

I have attended many deathbeds in hospitals and hospices to witness Wills. The Testator has sometimes died later the same day. The new model won’t work in that scenario. Not with one postal collection a day.

Increasingly of course people are dying with large fortunes often resulting from increasing property values over the years. This has been the reason for the flood of litigation in recent years in which disappointed sons and daughters and others have tried to challenge the validity of wills which did not make them as rich as they wanted.

That means there’s a gang who will be looking for loopholes. (W.C. Fields would read the Bible for no other reason). And what a rich seam of loopholes the new rules might provide. Not the least will be the almost thrown-away phrase in the new guidance that “ideally they (the testator and the witnesses) should be present with each other but if this is not possible …..”

NOT POSSIBLE. Define “not possible”. Anyone? It means CANNOT be done. It doesn’t mean – “too much hassle”, or “I feel safer if I don’t”.   I don’t know what it does mean though. Does anyone? That is the state of the law these days.

So my summary is, This is new, So Let’s all ignore it.

Wills witnessed remotely are fraught with possibilities of mistakes, and vulnerable to challenge. Only use them as a last resort. Having said that, making a Will by any means is better than not making a Will

Let’s all stay safe, wash our hands, wear a mask and with a fair wind there’ll be no need to –Call The Doctor-

Louise and I are back at work, so please do contact us whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

 

Notarisation. All Human Life is here. A Matter of Birth, Marriage and Death?

Notarisation. All Human Life is here. A Matter of Birth, Marriage and Death?

Last week Louise showed how notarisation can literally be a matter of life and death. –Link-

And certainly Notaries are involved in every aspect of human existence and therefore that necessarily includes Births, Marriages and Deaths.

The function of a Notary is to certify (and financially underwrite) facts. Usually in the case of an English Notary this is done to assist persons in a foreign jurisdiction so that they can be sure of what has actually been done, or signed, and by whom, in England.

But England is a country with its own laws, rules and customs, and “abroad”, just like the past, is a separate and always foreign country.

They do things differently there.

An example:- For a valid marriage in Brazil, it is fine for someone who cannot travel to get married there, to sign a Power of Attorney and appoint someone else to go there for you. And if your future spouse can’t get there either then someone else can be appointed too. A second Power of Attorney can be made and a second Attorney can turn up for the Marriage.

So neither of the two people who turn up at the Church or Registry Office are actually parties to the marriage. But the marriage is valid nonetheless.

That procedure is not available to create a legal marriage in England. But if both parties are present in England and want to sign those Powers of Attorney before a Notary Public in England – then fine.

There is an English law against not going to your own English marriage, but no English Law against not going to your Brazilian marriage.

So the principle which I have to follow as a Notary seems to be that I can assist my clients to achieve abroad whatever the foreign law allows, unless there is an English law that says that this is something that an English Notary cannot do.

Two areas other than marriage in which Notaries are often asked to help are in relation to

1 – Assisted suicides and

2 – Surrogate births.

I have blogged before about Dignitas et al. -Here is the link-

In a nutshell, I may not assist if I know or am told that the purpose of the document being signed in my presence is to facilitate voluntary acceleration of death.

Because whilst suicide itself is not a crime, it can be a crime to aid and abet suicide, particularly for money.

Enough about Death – What about Birth? What about surrogacy and notaries?

If assisted suicide relates to “unnaturally” ending a burdensome life, Surrogacy might be seen as the opposite. It is a means of “unnaturally” bringing into being a much wanted life.

There is nuance in the word “unnatural”.

Taken neutrally, it means only “contrary to the ordinary course of nature”.

In 1978, when everything was different, a Judge called surrogacy “irresponsible, bizarre and unnatural”. He is likely to have meant, and was surely understood to be meaning “irresponsible, bizarre and deviant, inhuman, perverted” – that sort of thing.

No-one thinks like that anymore so far as I know.

But if ever there was a scope for profiteering, put overwhelming desire for a child in the mix with short supply and there you are.

After years of exploitation of their citizens becoming surrogates in the hope of alleviating poverty, India Nepal and Thailand have banned –or at least rendered illegal – commercial surrogacy. -Link to NY Times article-

And how about this for an illustration of the dark side when profit becomes the motive? – unsterile hospitals, surrogate mothers treated like cattle in Ukraine according to Aljazeera – link here –

The English Law up to date has tried to balance –on one hand- the legitimate desire of infertile or same-sex couples to raise their own children by surrogacy, and the legitimate desire of altruistic and willing surrogate mothers to assist them, whether or not to be paid for doing so against –on the other hand – the obvious and real risks of exploitation and profiteering by hard headed commercial or even criminal interests.

-Here’s the Law –

So in England, commercial surrogacy companies cannot exist. So if you are English, you will be going abroad if the arrangement is commercial – if you are going to pay the mother and the doctors who are working for profit.

Which is where the Notaries come in, because just like the marriage by Power of Attorney in Brazil in the early paragraphs above, what is not illegal abroad can be notarised in England if the notarisation itself in England is not illegal.

But aiding and abetting commercial surrogacy enterprises (as opposed to charitable and/or non-profit-making foundations) – is also illegal in England.

Simple enough for you?

So when a couple come to see me to notarise their surrogacy agreement from Colorado, it’s not exactly straightforward for me to work out, can I help or not?

You tell me, I’ve given you the law.

My own answer? –  A resounding “It depends”.

Here is the song, an excuse for some vintage footage –Link here – (that was from 1963 – and did you know that Ronnie Spector most recently issued a single in 2017 – here it is- )

Louise and I are back at work, so please do contact me or Chris whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)