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The Law Society of Scotland has issued guidance on the correct procedures for Solicitors taking Will instructions from new and existing clients during this period when face to face meetings with clients are not possible.

Witnessing

Particularly welcome is the guidance on the situation where it is not possible for a witness to be present in person during the signing process.

Where it is not possible, or appropriate, for a witness to be present when the Will is signed, then it will be acceptable for the Solicitor who prepared the Will to act as the witness via video conference.  The original Will, once signed, should then be returned, to the Solicitor for signature.

Safeguards

Where an entirely new client wishes to make a Will, or where instructions are given on behalf of someone else, the Solicitor cannot simply take instructions by phone or email and then issue a document for signature.  Rather, they must ensure that they have interviewed the person making the Will by video conference, to confirm their wishes.  This is to ensure that the client is giving instructions voluntarily and without undue influence, an exceptionally important safeguard even in normal circumstances.

Identity Checks

Normal identity checks have not been relaxed during this period and the Solicitor will therefore be required to verify a client’s identify using normal procedures.  This is commonly done using a passport or driving licence.  Where a personal meeting is not possible, a client must display the ID to the Solicitor during the video conference and send a copy by email or post, for further examination.

Technology

Where new clients wish to make a Will and video conference facilities are not available, the Solicitor may not be able to act at all, so everything should be done to seek help from trusted friends or family in setting up the required technology. 

If all else fails, a homemade Will signed on every page and dated is better than no Will at all, but should certainly be seen as a last resort, as it is extremely rare for such Wills to be recognised as valid on their own following a death without further evidence being presented.

For advice on making a Will at this time, please contact a member of the Private Client Team.

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