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Murray Beith Murray is a leading Scottish private client law firm.

For over 170 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.

4 minutes reading time (716 words)

The Scotsman: Where there’s a Will there’s a way, even in these troubled times

Murray Beith Murray Partner, Andrew Paterson, writes in The Scotsman this week (13 April 2020), read the full article: andrew

In an unprecedented time, it is important that you can continue to manage your personal legal affairs in the most efficient way possible and feel supported in doing so. Lawyers are thinking fast about ways in which various deeds can be finalised whilst adhering to social distancing rules.

Wills

The general rule for signing Scottish Wills is that they must be signed at the foot of every page in the presence of one independent adult witness.

Given social distancing rules, it’s not always possible for an independent adult witness to be present, unless you live with someone to whom you are not related and is not a beneficiary of your Will, e.g. a flatmate.

Some options available are:

  • Sign the Will without a witness: although not ideal, the courts would still be able to accept an unwitnessed Will as valid as long as certain additional evidence is provided after your death, such as affidavits by people familiar with your signature.
  • Your solicitor could post you two copies of the Will to sign (or you print two copies which your solicitor sends you by email). You sign one copy without a witness and sign the second copy with a witness, once social distancing rules have been relaxed. This means you are not delaying on signing your Will and the unwitnessed Will can be destroyed once the second Will is witnessed.
  • Video link – the Law Society of Scotland (LSS) has issued guidance suggesting Wills can be witnessed by a solicitor using video technology, but preferably some form of technology allowing the video call to be recorded for record-keeping purposes. The solicitor should witness you signing each page, or arrange for someone else on the video call to do so. You should then post the principal Will back to the solicitor who should sign it as witness as soon as it reaches them.
  • Ensure the witnesses remains two metres away – this has been suggested, although there are concerns that Coronavirus can survive on paper for up to 12 hours, so there is potential for it to be transferred from handling the Will.

Powers of Attorney

Scottish Powers of Attorney (POA) all contain a Certificate of Capacity which must be signed by a practising lawyer or UK-registered and licensed medical practitioner. Powers of Attorney must also be witnessed by an independent adult. Legislation governing the signing of POA requires the lawyer/doctor certifying capacity has interviewed the granter immediately before the signature.

The LSS has suggested a Skype or FaceTime video call can be adopted to satisfy this legislative requirement if a face-to-face meeting isn’t possible. If the solicitor is satisfied the granter has capacity, then, at the solicitor’s request, the granter should sign the document and the witness should sign as appropriate. The granter should show the solicitor the signed copy POA document, and then return the principal signed document to the solicitor as soon as possible. Once received, the solicitor should incorporate the Certificate of Capacity into the document. It should be signed by the certifier on the same day as execution by the granter.

Whilst not essential to witness a POA because it becomes self-proving once it has been registered by the Office of the Public Guardian, it would still be useful for it to be witnessed, if possible within the parameters of social distancing rules.

(Published with contribution from Murray Beith Murray Solicitor, Nur Hemsi)

Specialist Estate Planning Solicitors, Edinburgh

Murray Beith Murray remains committed to providing you with full legal service during these extraordinary circumstances. If this article has raised any questions, or if you would like to discuss estate planning with one of our specialist solicitors, please call us on 0131 225 1200 or complete our contact form.

Our personal, attentive service coupled with sage, astute and commercially-minded guidance, allows us to build long-term, ongoing relationships with our clients, helping them to protect assets throughout generations. We clearly outline the implications from initial contact, helping to dispel the mystery behind the law and legal process. Our highly personal service reflects our culture, which is centred on integrity and trust, and the expert guidance we provide has been designed to be an investment, not an expense.

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