Vigilance needed to protect those vulnerable to undue influence when making wills

9 Oct 2020 | Suzanna Baker

The coronavirus pandemic has left many elderly and vulnerable people increasingly isolated due to social distancing, shielding and restrictions on households mixing.

Experts at London law firm Osbornes Law warn that this, combined with a new law that means wills can now be witnessed remotely, leaves those making wills potentially more vulnerable to undue influence.

Suzanna Baker, a lawyer specialising in wills, probate and Court of Protection matters at Osbornes Law, says:

“At a time when so many are feeling isolated, it is concerning to think that there are unscrupulous people out there who are willing to take advantage of the current situation to target older or vulnerable people with a view to benefitting under their will.  They could be people who they have known for a long time or new acquaintances who deliberately befriend them for personal gain.”

Last week, amendments to the Wills Act legalising the remote witnessing of wills came into force.

The temporary changes are backdated to 31 January 2020 and allow the witnessing of wills to take place via ‘video conferencing or other visual transmission’, such as Skype and Zoom.

Suzanna says, “These changes were needed to ensure those unable to get their will witnessed in person due to the pandemic, are still able to make a valid will.  There are however concerns about the scope for undue influence or breaches of confidentiality.

“When signing wills remotely it is hard to rule out completely the presence of someone off camera persuading the testator to sign or secretly listening in to the call, so in these situations, caution is needed.  Wills will also need to be posted to witnesses, so there is also the possibility of signed copies being tampered with. For these reasons, remote signing of wills should really be a last resort.”

Once a will has been made, it will be harder to contest a will or challenge a situation where you believe a friend or relative has been taken advantage of.

Suzanna warns, “If you have concerns that someone is being manipulated it is important to act quickly. If their will is changed and suspicions are not raised until after they have died, the assumption will always be that the will is valid. If they are no longer around to explain their actions, it can be difficult to prove undue influence.”

Suzanna offers the following advice to those worried about a friend or relative:

  • Your starting point must be to talk to the person you have concerns about. Despite your worries, do listen and don’t force your views on them. Age UK offers advice for handling such conversations.
  • It may be necessary to inform anyone in their support network of your concerns and ask them to be vigilant. This might be neighbours, carers, their GP, bank or local shops.
  • If you think that your friend or relative is no longer able to make their own decisions, contact the adult safeguarding team at their local council, or GP, who can arrange an assessment of their mental capacity. However, it is important to remember that if someone is able to make their own decisions, they have the right to make those decisions even if you think they are wrong.
  • Where an individual does have mental capacity but is willing to have you help them or take over decision making for them in relation to financial or welfare matters, they can apply for lasting power of attorney through the Office of the Public Guardian directly, or via a solicitor.
  • If your friend or relative has been assessed and is found to lack mental capacity, it may be appropriate for you to apply to the Court of Protection to become their Deputy. If appointed, this means you can then make decisions on their financial affairs and welfare.

If you would like to speak with Suzanna, or another member of the Wills, Probate and Disputed Estates team, call 0207 485 8811 or complete an online enquiry form.

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