Guidance on obtaining Statutory Wills during the COVID-19 epidemic.

In this article Ruth Hughes and Eliza Eagling offer practical guidance on obtaining and executing a statutory will in the Court of Protection during the current epidemic, drawn in part from Eliza’s recent experience obtaining an urgent statutory will.

These are very difficult times. Many people who lack capacity are in the most at risk groups from Covid-19. As Mr Justice Hayden, Vice-President of the Court of Protection, recently said: “This Court is charged with responsibility for a cohort of people who are in the eye of the storm.” It is arguable that all statutory wills for these people are now urgent. However, clearly Covid-19 creates some unprecedented difficulties in making or continuing a statutory will application.

This article suggests some practical ideas based on our initial experiences of Covid-19 statutory will hearings. The situation is in significant flux and the Court of Protection, lawyers and parties are all in the process of adapting to these new circumstances.

We would be interested to hear your experiences. If you have any questions or comments, please feel free to contact the writers – Ruth Hughes (rhughes@5sblaw.com) and Eliza Eagling (eeagling@5sblaw.com).

Guidance

On 13 March 2020 Mr Justice Hayden issued guidance on visits to P (click here to view the guidance in full). The guidance provides that:

On 18 March 2020 Mr Justice Hayden produced further guidance (click here to view the guidance in full) . Some of this guidance has been superseded by his later guidance but the following is of note:

1. The Court of Protection should accept electronic signatures;
2. Members of care home staff could notify P of an application (rule 7.2(1)(c) alternatively a COP9 application to dispense with notification requirements may be appropriate; and
3. There should be an invigorated determination for directions to be agreed by the parties, obviating the need for a hearing.

Additional guidance was issued on 31 March 2020 by Mr Justice Hayden (to view it in full please click here):

1. Not surprisingly, remote hearings are the default position and there is a new default template order providing for this. Attended hearings are only likely to take place if there is a genuine urgency and it is not possible to conduct a remote hearing;
2. Discussing judicial access to audio visual conferencing facilities, noting that judicial laptops come with Skype for Business and Microsoft Teams. However, the parties may choose from a selection of possible IT platforms and no one option is preferred;
3. All hearings must be recorded but no party may record them without the permission of the Court;
4. With regard to participation of P, resources are stretched – imaginative (but safe and proportionate) ideas are welcomed;
5. Telephone may be best when setting up hearings remotely where litigants in person are involved if they lack the technology to connect by video;
6. Guidance on witnesses – including producing an electronic cross-examination bundle how to administer the oath or take the affirmation;
7. Guidance on bundles – a single searchable PDF bookmarked format with essential material only with position statements filed in word separately; and
8. Use of electronic seals for welfare orders.

Capacity

We suspect that it may difficult to obtain authorisation for a final statutory will if there is any uncertainty over P’s testamentary capacity, unless P has already been examined by an expert. However, given the Vice-President’s guidance on visiting Ps, a traditional assessment may be impossible. In the circumstances other options to consider include:

1. Assessments conducted by video technology or telephone, if this can be arranged e.g. with co-operation from care home staff (see further the guidance of 18 March 2020);
2. A GP or private practitioner to review P’s medical notes and make an assessment on this basis (NB this may only be suitable for certain Ps, such as those with traumatic brain injury who are in a coma); and
3. Applications for a holding will (see below).

NB we doubt that most intubated Covid-19 patients will lack capacity because of a disorder in the mind or brain, but some will.

Hearings by Telephone and Video

Mostyn J has recently conducted a 3 day trial in the Court of Protection including cross- examination and journalists in attendance by video using Skype for Business. This is to be commended and shows what can be achieved with a will to it.

In Eliza’s recent urgent statutory will case the matter was listed for a final hearing at First Avenue House, London on Thursday 26 March 2020 with a time estimate of 1 day with attendance in person (1 day before Boris Johnson announced the lockdown).

On Wednesday 25 March the Official Solicitor applied for the hearing to take place by Zoom and to be brought forward due to a sudden deterioration in P’s health. The same morning the Judge made a directions order that the parties may attend by Zoom video conferencing (with the Applicant to make arrangements) and for the hearing to take place that afternoon.

Counsel for the Official Solicitor agreed to host the Zoom hearing (as she had a professional account meaning the 40 min limit on free accounts did not apply). The Applicant made arrangements for the hearing via the usual email address (courtofprotectionhearings@justice.gov.uk). The Court and the Judge were sent a link to the “meeting” by email. There were six parties so it was agreed that only counsel / Litigants in Person would attend. Two things learnt from this case are: it is worth arranging with the Court to test the link and software in advance of the hearing (if there is time) and for the Applicant to send the Court an electronic “attendance slip” when making the arrangements.

The Judge allowed the parties a 15 minute recess during the hearing to make minor amendments to the proposed will. The parties used the “share screen” function on Zoom to view the amendments being made, and the amended will was then emailed to the Judge.

Some thought will need to go into how one takes instructions during a telephone or video hearing. The Judge may give allow a recess. Other possibilities include e-mail instructions or even WhatsApp groups! Ruth is using a legal team WhatsApp Group for a hearing tomorrow.

Involving P in such hearings is also challenging. We have experience of attempting to involve a keenly interested bedbound P in an in person hearing recently. This was possible (just about) by one of the solicitors attending P at home. However having an additional solicitor who is likely to pose risk to P, so a care worker in attendance in any event may need to be recruited. Obviously many statutory will hearings occur without P’s attendance, but every effort should be made to include P if he or she wishes.

Hearing requiring witness evidence are trickier, and it is difficult to see how these could be conducted by telephone and a video hearing seems likely to be necessary. However, it is worth asking the question whether cross-examination is really necessary, it will be in some cases. We note that in the early days of the Mental Capacity Act 2005 cross examination was virtually unheard of in statutory will claims. It may be worth flagging this issue to the Court when considering what platform a hearing should be conducted on.

Bundles

In telephone and video hearings it will be key to have a good bundle prepared in advance. Depending on the time constraints before the hearing, it is incredibly useful for advocates to have an electronic bundle with a hyper-linked index that includes all exhibits to statements individually listed and described (or at least the most important exhibits). This makes finding documents during the hearing as efficient as possible. Advocates should consider PDF Expert (for Mac) or Adobe Pro which allow tabbing and highlighting a PDF.

The latest guidance and bundles is adumbrated in the Vice-President’s Guidance of 31 March 2020.

Communication in advance of the hearing to narrow issues and agree a technology strategy is vital.

Interim Statutory Wills (also known as ‘holding wills’)

The Court has power to make an interim statutory will under section 48 of the Mental Capacity Act 2005 if

1. there is reason to believe that P lacks testamentary capacity; and
2. it is in P’s best interests for a will to be authorised without delay.

It is our experience that it has become easier to obtain interim statutory wills over time, perhaps because the Court frequently makes interim orders in other cases and interim declarations in relation to capacity are common place.

It is certainly arguable that any P in the higher risk bands for the virus is now a candidate for an interim statutory will without specific evidence of limited life expectancy.

Executing a Statutory Will

In Eliza’s recent case the draft order included provision for the statutory will to be executed before the order was sealed (because P was dying) and for the statutory will to be identified by the Judge electronically. Fortunately, the Judge indicated that she would be able to seal the order and could initial, and then scan the will. The Judge duly emailed the Applicant with the sealed order and a scanned will within the hour. However, whether this is always possible depends on the level of urgency, where the Judge is situated and what technology he or she has available.

We suggest that having a will to hand to execute immediately will be sensible. Consider who is able to execute a statutory will safely, perhaps someone working at home with two other adults in the house where that is possible. In Eliza’s case, the most viable candidate was the self-isolating Deputy who executed the will in a car park, with witnesses viewing the will through the open car windows!

Keep an attendance note of the time the will was executed in case time of death becomes an issue.

To instruct Ruth or Eliza please contact the clerks of 020 7242 6201 or clerks@5sblaw.com – at this time electronic instructions would be appreciated.

This article is based on the law in England and Wales as at 1 April 2020.