Taunton Leads The Nation With Covid-19 Safe Wills

Our account of how, during the lockdown, a self-isolating client and a very effective local MP helped us trigger the most significant reform to will writing since 1677.

See: Taunton Chamber Chatter – Broomhead and Saul Dec 2020

Published in the December issue of the Taunton Chamber of Commerce’ journal, Chambers Chatter, and reproduced here with the kind permission of the Taunton Chamber of Commerce at www.taunton-chamber.co.uk and DesignBean at www.designbean.co.uk.’

 

Why setting up a Lasting Power of Attorney is so important

What is a Lasting Power of Attorney (LPA) and do I need one?

A Lasting Power of Attorney is a legal document in which you appoint one or more people (your attorneys) to help you either manage your financial affairs or to make decisions about your health and welfare.  There are two separate forms, one for finance and the other for health.  You can choose to have either one, or you can choose to have both, and if both you can have different attorneys for the separate forms or you can choose the same ones.

There is an important distinction between the two different types:  the Health and Welfare only comes into effect when you are not capable of making your own decisions while, with the Financial Affairs one, you can choose to let your attorneys help you, even though you still have mental capacity.   In either case they must always act in your best interest.  Furthermore, with the financial one, they must let you make all the decisions yourself, if you have capacity, and not overrule you.

A Lasting Power of Attorney allows you to plan ahead for unforeseen contingencies. Illnesses and accidents can happen to anyone at any time and at any age and having a Lasting Power of Attorney in place provides you with peace of mind as it avoids the risk of incurring the substantial cost of making a formal application to the court, as well as sparing your loved ones much distress and uncertainly. It also enables you to stipulate who is to exert that power on your behalf in these circumstances.

Most of us assume that our next-of-kin already have authority to deal with such matters, but this is not the case. Even married couples need to ensure that either of them will be able to lawfully manage the other’s affairs in the event of physical or mental incapacity.

You will, at all times, retain the legal right to make your own decisions, good or bad, about your financial affairs and health and welfare even after you have a Lasting Power of Attorney in place; so long as you retain the mental capacity to take these decisions.

You can revoke your Lasting Power of Attorney at any time, as long as you have the capacity to do so.

Who should I appoint as my attorneys?

The short answer is that you should choose people you trust implicitly and, just as important, whom you already get along with. These can be friends or relatives. An attorney’s age, life experience and location should be considered.

If you appoint more than one attorney, which is something we usually recommend, then you will need to decide on their working relationship.  You can appoint them jointly, in which case both attorneys have to be in agreement when making a decision or taking action on your behalf, or jointly and severally, which enables your attorneys to allocate their joint responsibilities between themselves.  Each alternative has its benefits and potential drawbacks.

If you do not have any close friends or relatives that are able or willing to act in this role, you can appoint members of this firm to act as your attorneys.  We have a capable team of professionals who are very experienced in this work.

We are also experienced in acting in collaboration with lay attorneys and our hourly charge rate is always set at a competitive rate.  Our professional duty is always to act in our client- donor’s best interests, come what may.

Can a Lasting Power of Attorney be changed?

Yes.  So long as you retain the requisite mental capacity to make your own decisions, you can revoke your Lasting Power of Attorney and prepare a new one, if you want, at any time. The rules that determine whether an individual has the requisite mental capacity to make their own decisions are extremely well thought through and set out in statute. Disputes on capacity are usually resolved by medical experts.

It does not matter whether the Lasting Power of Attorney has been registered or not, you can still cancel it.

Can a Lasting Power of Attorney be challenged?

Here at Broomhead & Saul we can arrange in appropriate cases for medical professionals to consider the issue of mental capacity in order to try to avoid any further arguments over this issue.

You also benefit from the fact that professionally trained and qualified solicitors have overseen the preparation and execution of the documents. When people make Lasting Power of Attorney themselves, they can be more open for challenge on grounds of undue influence and lack of capacity.

What is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?

An Enduring Power of Attorney signed before 1st October 2007 remains valid. However, this will only cover your property and financial affairs. Should you wish to give authority over your health and welfare matters you will need to make a health and welfare Lasting Power of Attorney.

This article was contributed by our Michael Fitzgerald, one of our rising star specialist probate lawyers.

For more information on LPAs please click here or to book an appointment at our Taunton or Ilminster office, please contact Andrew Lewis, Sue Baker, Mel Dodds or Michael Fitzgerald.

French Property News, features Dr Bevan’s article on video wills

Dr Nicholas Bevan explains the benefits of distance wills for expats in his article, Video Wills, published in the December 2020 edition of French Property News.

Nicholas comments on the consequences of the reform that Broomhead & Saul initiated (together with the associated law firm Solicitors Title LLP):  ‘ Until the end of January 2020, you can now make, amend or execute an English will without leaving your home, whether you live in the UK, France or anywhere else in the world. it has never been so easy.’  Nicholas’ ground breaking research indicates that a much broader concept of remotely executed video wills is fully consistent with the Wills Act 1837 and a consistent line of long established common law rules. Most law firms still do not offer their clients the video witnessing services we were first to devise and put into practice, despite our successful law reform campaign.  As Nicholas says: ‘The problem here lies with the lawyers, not the law itself.’

Lexis Nexis Webinar hosted by our very own Dr Nicholas Bevan

 

Dr Nicholas Bevan has been invited by the nation’s leading law publisher, Lexis Nexis, to share his insights into the government’s emergency measure sanctioning the video witnessing of wills. Dr Bevan made legal history on 1 May when he executed the first video will in this jurisdiction before following this up with a successful law reform campaign that led to the passing of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020.  Here is his promotional video.  Nicholas is a partner at both Broomhead & Saul and its associated practice, Solicitors Title.

For more information on remote video witnessing of Wills, please contact Dr Nicholas Bevan on 01823 288121, nicholas.bevan@broomhead-saul.co.uk

New Law Journal publishes Dr Nicholas Bevan’s latest feature on video wills

The prestigious New Law Journal, has just published another article by Dr Bevan.  In ‘The video will execution regime: a half measure?, 30 October 2020, Nicholas argues that the Law Society missed a unique opportunity to persuade the government to assign to its members the role of administering the execution of wills from a distance, using video technology.

This would have enabled people who are particularly vulnerable to Covid-19, such as the elderly, to instruct their solicitor (over the internet) to sign their will in their name and then for the solicitor’s staff to witness and attest to this all in one single session, all managed from the solicitor’s office premises with the clients remaining in the safety of their homes.

In the article, Nicholas explains how the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 only explicitly sanctions the video witnessing of wills for two years from 31 January 2020. This secondary legislation was introduced in direct response to Dr Bevan’s initiative.

The limited scope of the Wills Act Order

Unfortunately, the Order is limited in its scope.  It’s provisions necessitate at least two separate video sessions: the first being to witness the will signing; the second, to enable the testator to observe the witnesses’ attestation.

If the witnesses need to social-distance from one another, then the testator’s signed will needs to be posted out to each witness separately, with the testator being required to remotely attend both sessions. The result is an unnecessarily cumbrous, time consuming and costly exercise with the following attendant risks:(i) of the will being lost, delayed or damaged in the post (in up to six separate postings) and/or (ii) the witnesses learning of the dispositions and divulging this highly confidential information to third parties.

These limitations were unnecessary.

In several other common law jurisdictions, such as Canada and Australia, the legal professions there successfully persuaded their government to sanction the entire process of executing a will, remotely over the internet. In Ontario, for example, this is made conditional it being managed by legally qualified professionals.

A lost opportunity

Unfortunately, according to Nicholas, the Law Society in England misinformed both itself and its members of the correct legal position by insisting in its practice guidance that video witnessing was not a valid means of manifesting a witness’ presence, under the Wills Act.  It failed to explain its reasons, when invited to do so.  However, Nicholas’ own research revealed that the Law Society’s stance was badly misconceived.  His research also indicated that there were sound grounds to believe that the use of video technology in this context was fully consistent with well established case law; a point which was later accepted by Lord Keen QC, as Advocate General, when responding to Nicholas’ paper on 19 June.

Unfortunately, the Law Society compounded its error, by first asking the government to dispense with the witnessing requirements altogether (just when the vulnerable and elderly appeared to be most at risk of undue influence or fraud, due to the need to self-isolate) and after its proposals were rejected, it appears to have asked the government to introduce inappropriate guidance to accompany the Wills Act Order’s provisions; these diminish its effectiveness.

Two alternative basis’s for video witnessing

Nicholas concludes by noting that the common law ‘clear line of sight’ principle (identified in Nicholas’ detailed research paper of 3 June 2020 and which was adopted as a central tenet by the government in its Guidance) is capable of accommodating a holistic online video wills service equivalent in scope to that enjoyed in the common law jurisdictions mentioned above.

Consequently, there are two concurrent video will execution regimes in force at present: a broader version that is informed by the well-established common law principles Dr Bevan identified but which remains uncertain as they have yet to be tested by a court, the other rendered temporarily explicit by the Order.

 

Legal 500 recognition for Richard James

Richard James, partner at Broomhead & Saul, has been acknowledged in the 2021 edition of Legal 500 for his team’s work in advising the technology sector in the South West, in commercial contracts and on data protection issues.

Richard is singled out as having a particular expertise in MBOs, joint ventures, M&A and restructurings.

Legal 500 is an independent and internationally recognised directory of leading law firms and highly esteemed lawyers.

This demonstrates that Broomhead & Saul provide first rate commercial law services, of a quality one would expect from a big City of London firm, but accessible locally and at an affordable price.

Our very own Dr Nicholas Bevan on Taunton’s Tone FM

On Tuesday6 October  Dr Nicholas Bevan joined Darren Daley on the morning show at Tone FM. He explained the importance of making a will and how he challenged a widely held misconception that insists on a testamentary witness’s physical presence at a will signing and how his research and activism lead to an important reform to the Wills Act 1837. Listen here to the interview: https://tonefm.co.uk/listen/nicholas-bevan-from-broomhead-saul/

 

Macmillan Coffee Morning

 

The sun was shining in the lovely historic market town of Ilminster on the morning of 17th September, and Broomhead & Saul, led by our colleagues at our Ilminster office were delighted to enjoy the good weather, whilst raising funds for Macmillan Cancer Support, by participating in the worlds biggest coffee morning.

With so many delicious treats on offer, no passer by could resist sampling the odd piece of chocolate cake, or lemon drizzle, especially for a good cause.

The event was a wonderful success raising just over £320.00, with the firms Partners contributing an additional £125.00, bringing the total to £440.00.

Broomhead & Saul would like to thank all of our bakers and contributors of treats, including Bonners Butchers of Ilminster, who very kindly supplied the prize for our Colin Conundrum, and of course everyone who stopped by to enjoy a coffee and piece of cake with us,  to help support this fantastic Charity.

If you were unable to join us, but would still like to make a donation to Macmillan’s wonderful cause, then please follow the link below.

https://thyg.uk/BUU004456565

Video Witnessing of Lasting Powers

A track record of perceptive innovation

Broomhead & Saul lead the field, both nationally and abroad, with its imaginative approach to overcoming the procedural obstacles faced by the elderly and those who are particularly vulnerable to COVID -19’s pernicious effects.

Distance Wills

On 1 May 2020 we set a new national precedent when we enabled a self-isolating client to execute his will in complete safety over the internet using commonly available video conferencing technology to manifest the witnesses’ presence.

On 29 July we set a new international precedent when we managed the first execution of a trans-jurisdictional will using the same video technology, this time for an English national living in Crete, over 2,400 miles away.

Distance Lasting Powers of Attorney

Our legal research and client services development team have also devised a novel procedure that enables clients residing in care home or who are hospitalised or self-isolating to execute a Lasting Power of Attorney during this pandemic without infringing the increasingly restrictive enhanced hygiene and health protection regimes.

Distance mental capacity assessments

We are in the process of devising a procedure for expert clinical psychological assessments under the Mental Capacity Act 2005.  This will not be appropriate for every client needing this service but we anticipate that will be beneficial in approximately 50% of cases.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that enables an individual (or donor) to appoint one or more persons (known as attorneys or donees) to make decisions on their behalf.

It only comes into effect if the donor loses the capacity to manage their own affairs.

There are two types of LPA:

  • A Property and Financial Affairs LPA
  • A Health and Welfare LPA.

It is entirely up to you whether you have one or both and we have the expertise and experience to advise you appropriately.

Completing a Lasting Power of Attorney at a distance

At Broomhead & Saul our clients best interests are our first concern.  We also insist that our staff take reasonable and proportionate steps to protect themselves (and indirectly their families) from any avoidable risk of exposure to the coronavirus.  This is why we have developed a new and completely safe way of remotely executing a Lasting Power of Attorney using video technology.

We adopt similar procedures with our Distance LPAs to those employed in our ground breaking Distance Wills service, which now have statutory approval.

This allows us to provide a highly bespoke and comprehensive private client service to elderly residents of care homes; to those convalescing in hospital or those who are especially at risk from Covid-19.  We are able to advise prepare and complete their wills and or their LPAs in just two video sessions.

Daring to act

Broomhead & Saul were the first firm in the country to execute a Distance Will for a self-isolating client on 1 May 2020 in defiance of the near uniform disapproval of the legal profession who erroneously insisted on the need for a witness to be physically present, COVID-19 notwithstanding.  Our published research exposed this misconception for what it was.

Our meticulous analysis of the The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 and the relevant case law establishes that Distance LPA’s are an entirely valid and proportionate lawful response to the Coronavirus pandemic.  At the time of writing, we are not aware of any other law firm that his had the confidence to research these statutory provisions and to devise this unique solution to the problem posed in this field of practice by COVID-19.

To make an appointment to discuss your needs, please contact:

Taunton Office: 01823 288121

Contact: Dr Nicholas Bevan

or email nicholas.bevan@broomhead-saul.co.uk

Outstanding Law Reform Success

Broomhead &Saul dared to differ, then led the way

 

The statutory formalities for wills

The law governing the formalities for making a valid will is prescribed by section 9 of the Wills Act 1837.  These formalities include a requirement that the testator and the testamentary witnesses should be in one another’s mutual ‘presence’, when the will is signed.  The provision is silent as to what is meant by ‘presence’.

The coronavirus conundrum

When the coronavirus pandemic forced the government to impose a lockdown in March 2020, the entire legal profession appeared to be united in believing that the term ‘presence’ requires a physical presence.  This presented significant difficulties for vulnerable people who needed to make a will in safety.

The Law Society’s Practice Guidance

The Law Society’s practice guidance between March and late July 2020 insists on the need for a witness’ physical presence.  Its advice in this respect was emphatic: ‘Under the Wills Act 1837, it is not permitted to witness a will via video messaging as a witness must be physically present, …..’

When this accuracy of its advice was challenged by Broomhead & Saul and its associate practice, Solicitors Title LLP, in early June, the chair of the Law Society’s Wills and Equity Committee eventually replied in these dismissive terms:

‘… we do not share your views on section 9 of the Wills Act 1837. We do not provide specific responses where the reasons are long established and available in most legal textbooks on the subject’.

The only problem with this dressing-down being that the textbook commentaries were silent on this point and not a single judgment addressed this issue[1].

The Law Society’s guidance remained unaltered throughout the national emergency.  The unfortunate effect of which was to deny vulnerable members of the public the benefit a perfectly valid and completely safe way of remotely executed their wills.

The source of the confusion

Our independent research reveals that the source of this misconception appears to originate from some uncharacteristically sloppy research undertaken by the Law Commission in 2017.  In its Consultation Report: Making a Will, it had this to say: .

6.32 For a will to be valid, the testator must sign or acknowledge his or her signature in the presence of both witnesses and the witnesses must sign or acknowledge their signatures in the presence of the testator. Whether the parties are in each other’s presence is currently decided with reference to whether they are in the same room and whether there is a line of sight. That rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online videoconference (there has been no such case). However, it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because “presence” has been held to involve physical presence.26 [Emphasis added]

The report does not explain the perceived ‘difficulties’ in establishing a ‘line of sight’ with video conferencing technology.

As for its assertion a physical presence has been held to be an essential requirement, that turns out to be completely untrue.  At footnote, 26, the report cites a case from 1948 (In the goods of Chalcraft) that has nothing to do with the physical presence or absence of the witnesses (nor the testator for that matter) because the all parties were present throughout.

The same error is repeated elsewhere in the report.  At 5.26 and 6.32, similar misattributed case authorities are wrongly claimed to support the need for a physical presence and in each case the parties were physically present.

The simple truth of the matter that in 343 years jurisprudence on this point not a single judge has decided that the term ‘presence’ insists on a witness’ bodily or physical proximity.  Dr Nicholas Bevan, senior associate at both Broomhead & Saul and Solicitors Title, shared these concerns with the wider profession in his New Law Journal article: Where there’s a will; there’s a way on 5 June.

A new orthodoxy

Such is the high esteem in which the Law Commission is held within the legal community and beyond that no one else appears to have questioned its assessment, still less double check its erroneous citations.  Our review of every official commentator and special interest group revealed that the Law Commission’s erroneous view was universally and unquestioningly adopted, almost as an article of faith.

The legal profession takes a wrong turn

In March 2020 the Law Society and several other representative bodies approached the Justice Secretary seeking a legislative intervention to amend section 9 of the 1837 Act to relax the statutory safeguards against fraud, to make it easier for the elderly and vulnerable to make their wills.

According to the Law Society’s own public statements, it had sought the presence of witnesses to be dispensed with for vulnerable categories of testator, a measure which, in our opinion, would have exposed these people to an unacceptable risk of fraudulent substitution and undue influence.

Deadlock

Fortunately, the Justice Secretary rejected these proposals on 29 April, and rightly so.  No further proposals were made and it soon became clear that any dialogue had concluded.

See the Distance Wills Reform Timeline

Solicitors Title challenge the consensus

In the last week of April Broomhead & Saul was approached by a self-isolating client who wanted to make a will without risking any exposure to COVID-19 (either from direct physical proximity of witnesses or indirectly from some inadvertent contact with a contaminated objected).  This led us to revisit section 9 of the Wills Act 1837.

Further detailed research indicated that there was no basis in law for the Law Society’s prohibition of video witnessing.  Furthermore, it revealed that not only was this technically possible but it was also capable of enhancing the legislative objective of fraud prevention: principally due to its capacity to provide a permanent audio visual recording of the entire proceedings.

At Broomhead & Saul and Solicitors Title we concluded that, properly managed, video witnessing was capable of meeting the ‘line of sight’ requirement indicated by the case authorities and thus of conforming to section 9 of the 1837 Act.

Broomhead & Saul and Solicitors Title call for official clarification and guidance

On 3 June 2020 we wrote to the Justice Secretary to explain our findings and to commend the benefits of video witnessing from fraud prevention and health and safety perspectives.  We emphasised the importance stressed by the case authorities on a witness’ ‘presence’ affording a ‘line of sight’ and the absence of any insistence on a physical presence.

We urged the government to intervene promptly by arranging for good practice guidance to be issued on video witnessing.   We shared our extensive research in Dr Nicholas Bevan’s paper, Why video witnessing is valid.

The government’s initial response

The Advocate General, Lord Keen of Elie QC, was deputised to reply on the government’s behalf.  In his letter of 19 June, he comments specifically on my contention that the term ‘presence’ in section 9 of the Wills Act 1837 does not need to be amended because it is already capable of embracing live streaming video technology to manifest the ‘line of sight’ mandated by the case authorities, he wrote this:

‘It is an argument with force, set out in impressively comprehensive terms in Dr Bevan’s paper, but the fact remains that we currently have no explicit judicial authority on whether the witnessing requirements of the 1837 Act can legally be satisfied by means of video-link technologies.’

An official announcement was promised ‘very soon’.

The government’s official response

On 25 July the government published its Guidance on making wills using video-conferencing, which Solicitors Title had been a lone voice in calling for.

This guidance closely reflects the proposals and reasoning advanced in our letter and paper.

The Guidance opens by announcing the government’s intentions of amending the 1837 Act in September  ‘… to state that whilst this legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.’  Further on it declares: ‘None of the existing relevant requirements [in the Wills Act 1837] are changed by the new law.’

It then acknowledges that the existing law requires ‘a clear line of sight’ before proceeding to provide best practice advice on how this can be achieved using video technology.

The Guidance is not dependant on the legislation for its legal effect as it is clearly intended to have immediate as well as retrospective effect.  This is highly significant: as the inescapable implication of this is that the government must accept that video witnessing is already a valid way of conforming with to section 9 of the 1837 Act as it adheres to the ‘line of sight’ principle outlined in our paper  (Otherwise, the guidance on video wills would constitute an ultra vires act, since [as our Prime Minister discovered to his cost recently] the Executive does not have the constitutional power to amend primary legislation, because that is Parliament’s prerogative).

On 4 September the government introduced The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 which gives formal effect to this reform for a two year period backdated to 31 January 2020.

The legislation will have retrospective effect for an extendable period of two years from 31 January 2020; after which time and unless extended, the amended 1837 Act will henceforth expressly require a witness’ physical presence.  It is to be hoped, that once the legal profession gets used to offering this beneficial Covid-19 safe procedure, it will gain a wider acceptance that will embolden the government to remove the time limit.

A campaign success for Broomhead & Saul and its associate, Solicitors Title LLP

When all is said and done, the official Guidance has endorsed the most substantial technical and procedural innovation to the way wills are executed for 343 years.  This will benefit thousands of elderly and vulnerable people.

 

Distance Wills Reform Timeline

Click here to access

 

 

 

 

 

[1] Presumably because no one had conceived of the notion of using video conferencing technology to execute a will prior to the onset of the pandemic.