Making a Will during Lockdown“The practical difficulties of it are enormous.”

As heard on Today with Sean O'Rourke

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No-one likes to think about their final testament, but the prospect of illness and even death due to the coronavirus makes wills suddenly seem more relevant. Social distancing and cocooning raise particular problems for the making of a will, according to barrister Tim Bracken. The wills expert and author of The Probate Handbook laid out the implications of making your wishes known under the new normal with Damien O’Reilly, sitting in today for Seán O’Rourke.

Making a will under social distancing or cocooning conditions is not impossible, but it is tricker than it would be under normal circumstances, according to Tim Bracken. The legal requirements are the same, it’s just harder for people to fulfil them. A critical factor, Tim says, is that a solicitor needs to assess whether or not the person making a will has the mental capacity to do so:

“If the solicitor has a doubt as to the capacity of the person making a will, I mean, you can only really assess them if you’re sitting down opposite them. So it is much more difficult now. ”

Capacity to make a will could be eroded by a person’s medical condition, according to Tim Bracken. He says that may include being on a ventilator, a factor very relevant to the current coronavirus pandemic. By the time someone is ventilated, it may be too late to make a will:

“It’s probably impossible, because I think if somebody is in an ICU ward and they are on a ventilator and they are heavily sedated because they are on a ventilator, they do not have the capacity to make a will at that stage.”

People who pass away without making a will are referred to as intestate, says Tim. This situation may have consequences that families do not expect. He says The Succession Act is applied and the effects may throw up some unpleasant surprises:

“If you’re married with a spouse or civil partner and children, two thirds go to the spouse and one third goes to the children. I’ve often spoken about this because it can cause difficulty if you have a troublesome child, maybe about the age of 19 or 20, and they could demand their share of the inheritance from the parent, and that may require selling the house or other assets or raising money to pay them off because they are legally entitled to it.”

Tim Bracken took the opportunity to remind people of some of the basics of will-making, namely that witnesses don’t need to be personally known to the person making the will. Bracken says if the witnesses are family members, then they need to be aware that they will lose any inheritance they might have had from that will. He says this is especially relevant in the current conditions, as people can end up with “home-made wills” and this can give rise to unexpected problems:

“Mistakes happen and quite often what happens with a home-made will is somebody who’s benefitting under the will is asked to witness it and of course they lose their benefit because a witness cannot be a beneficiary under a will.”

Making a will if you are cocooning is not impossible, according to Tim Bracken, but it is difficult. He lays out a possible scenario for making a will under cocooning condition:

“Maybe you could take instructions over the phone, and then the solicitor might attend, and maybe you could pass the will in though the letter box or something, then and they could sign it at a window inside. Then the will has to be passed out and the two witnesses then could sign it in front of the testator. It’s just, as you can see, the practical difficulties of it are enormous.”

If you want to hear Damien O’Reilly’s full interview with Tim Bracken on Today with Seán O’Rourke, you can get it here.

Ruth Kennedy

© The Listener 2020

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