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Covid-19 update: undue influence and lack of knowledge and approval

Posted: 08/05/2020

For a will to be valid, it must be made freely by the testator without the testator being unduly influenced or coerced into making the will. Coercion is to be distinguished from “mere persuasion” or “appeals to family affection” which form part of human nature. It occurs where a testator succumbs to pressure “for the sake of a quiet life” in such a way that they make a will in different terms to those they would make if able to exercise their free will. The validity of that will may later be challenged by reason of undue influence.

A testator must know what the contents of their will are when executing it and approve the contents. Even if a will appears to be validly executed and the testator had the necessary testamentary capacity, its validity may be contested for lack of knowledge and approval. This may occur if there were suspicious circumstances surrounding the preparation and execution of the will such as the main beneficiary of the will being very involved in its preparation.

It is usual when taking instructions for a will for a solicitor to see a testator in person and alone ie without any person benefitting under the proposed will, or any person who may have influence over the testator, being present. A solicitor is then able to assess whether the testator is making the will of their own free will and that it accords with their true wishes.

Given the current Covid-19 crisis and these times of lockdown, self-isolation and social distancing, there are clear practical problems and challenges in meeting a testator in person and ensuring that a testator is acting of their own free will.

Testators (often those who are elderly and vulnerable) may be complying with the lockdown by living with family members with no or limited access to friends, GPs and other medical providers, and Social Services. Even if not living with family members (or a carer), they may be completely reliant on one person to do their shopping, pick up prescriptions, and deal with unfamiliar technology to maintain contact with the outside world.

Solicitors are therefore more mindful than ever before about the need to ensure that undue influence and lack of knowledge and approval claims post death are avoided. “Homemade” wills prepared without the involvement of an independent professional third party are likely to be more open to challenge than a will prepared with the assistance of a solicitor.

Particular care must be taken (and contemporaneous written records or video recordings kept) where the testator is deaf or blind or where English is not the testator’s first language. The attestation clause may need to be amended to reflect those issues.

It is always advisable to have a valid will in place and to take legal advice during its preparation. It provides peace of mind that provision for family members has been made and ensures that assets are passed to those an individual wishes to benefit. If an individual dies without a will (intestate), statutory rules dictate the distribution of an estate and family members may fail to inherit assets. We would be happy to advise on the preparation of a will and any particular concerns which may exist due to Covid-19.

For further information, please see Covid-19 and making a will – your questions answered.

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Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP