The legislation recognises that:
The legislation will apply to wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except:
The legislation will apply to wills made up to two years from when the legislation comes into force (so until 31 January 2022), however this can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures. The advice remains that where people can make wills in the conventional way they should continue to do so.
When the new law ceases to be in force, people will only be able to make new legal wills using the normal methods.
The legislation applies to codicils (documents that formally modify or amend an original will). Codicils must satisfy the same signing and witnessing rules that are involved in the making of a will.
This guidance reflects both requirements and suggested best practice:
The legislation ruling the making of wills in England and Wales is the Wills Act 1837
None of the existing relevant requirements are changed by the new law.
Section 9 of the Act sets out the requirements for making and witnessing a will as follows, and these requirements remain in force:
No will shall be valid unless -
(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
The law also includes a number of other requirements. For example, that the person making the will ‘has testamentary capacity’ - that they know fully what they are doing and are able to express their intentions - and that they are not being unduly influenced by anyone.
For witnesses, the current law allows an executor to the will to be a witness but a beneficiary from the will (or their spouse/civil partner) cannot be a witness without the gift to them becoming void. ‘Mature minors’ are allowed to witness a will, but blind people cannot. There is a general assumption that a witness should have testamentary capacity.
In the existing law a witness must have a ‘clear line of sight’ of the will-maker signing and understands that they are witnessing and acknowledging the signing of the document, for example if self-isolation or social distancing have prevented the signing and witnessing of a will by people in the same room.
The person making the will must have a clear line of sight of the witnesses signing the will to confirm they have witnessed the will-maker’s signature (or someone signing on their behalf and at their direction).
The following scenarios would lead to a properly executed will during the pandemic within the existing law, provided that the will maker and the witnesses each have a clear line of sight:
In the new law, all of the legislation set out above applies where a will is video-witnessed.
The type of video-conferencing or device used is not important, as long as the person making the will and their two witnesses each have a clear line of sight of the writing of the signature.
To reflect this, the will-maker could use the following example phrase:
‘I first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.
Witnessing pre-recorded videos will not be permissible - the witnesses must see the will being signed in real-time. The person making the will must be acting with capacity and in the absence of undue influence. If possible, the whole video-signing and witnessing process should be recorded and the recording retained. This may assist a court in the event of a will being challenged - both in terms of whether the will was made in a legally valid way, but also to try and detect any indications of undue influence, fraud or lack of capacity.
The following scenarios illustrate circumstances in which video-witnessing might be appropriately used:
Example 1:
the testator (T) is alone and witness one (W1) is physically present with witness two (W2). Together, W1 and W2 are on a two-way live-action video-conferencing link with T
Example 2:
T, W1 and W2 are all alone in separate locations and are connected by a three-way live-action video-conferencing link.
Example 3:
T is physically present with W1, and they are connected to W2 by a two-way live-action video-conferencing link.
Example 4:
T is physically present with a person signing the will on their behalf (and at their direction), and connected to W1 and W2 by two or three-way live-action video-conferencing (depending on whether W1 and W2 are in the same or separate locations)
Signing and witnessing by video-link should follow a process such as this:
Stage 1:
Stage 2:
The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.
Stage 3:
Stage 4:
The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign.
Stage 5:
Consideration may be given to the drafting or amending of the attestation clause in a will where video-witnessing is used. The attestation clause is the part of the will that deals with the witnessing of the will makers signature. For video-witnessed wills it may be advisable to mention that virtual witnessing has occurred, along with details of whether a recording is available.
If you have any questions about this process you are advised to consult a solicitor or will-making professional.
Professional bodies, such as the Law Society and STEP, are expected to be issuing their own guidance to their members on this process, and any such material should be read alongside this guidance.
The Government has decided not to allow electronic signatures as part of this temporary legislation due to the risks of undue influence or fraud against the person making the will. These risks were identified by the Law Commission in its 2017 consultation paper on wills. The Law Commission is undertaking a law reform project which will include consideration of the possibility of allowing electronic wills in the future.
The term ‘counterpart documents’ refers to when two copies of the will are prepared, and while the will maker signs one document, the witnesses sign another copy of the same document. The two counterpart documents between them constitute one valid will.
The Government has decided against introducing counterpart wills as part of this temporary legislation. Although some authorities have adopted this reform to complement video-witnessing, the Government has decided against allowing it in England and Wales in the belief that the risks outweigh the benefits at this stage. Such risks include there being different versions of the will (with different contents), the witness signing the wrong document, and an increase in the risk of undue influence and fraud.
Here is a link to the Government Website for this article/update: https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing
The Government Apprenticeship Scheme is promoted as an option by the SRA for a way to assist with the funding of training costs.
It is Government Policy to help people into employment to be able to use their skills and become good tax-payers.
So, you should be pushing at an open door. In October 2020 DWF announced that from January 2022 trainees will be on the SQE using the Apprenticeship Scheme. In April 2021 the BBC In-House Legal Department invited applicants for Level 7 Graduate Legal Apprenticeship in 2022 - to qualify as solicitors through the SQE. So the larger organisations are starting to adopt this.
The big benefit is that the trainee can qualify without a £17,000 debt (as currently is the case under the LPC).
* The government is reviewing whether the funding of level 7 apprenticeships such as for the SQE should continue. Here's a link to their press release of 24.9.24
But that might give employers more flexibility over wages perhaps?
We are interested in helping people who have done their degree to progress with their career. There are so many struggling to find a traineeship at the moment and in limbo. Such a waste of potential, effort and money. The assistance here may unlock all the potential places that exist in small law firms.
Here is a summary of information on how a law firm could use the Apprenticehip Scheme for people training to become solicitors:
Funding for the training
The Apprenticeship scheme is run through a portal. You can delegate a lot of the admin should you wish.
Getting rid of an underperforming Apprentice – Apprentices have no more or less employment rights than any other employee. There is no impact on the apprenticeship funding. There is no clawback from the employing firm. The Training Provider would cease to receive any more money as the training would have ceased.
External QWE Confirmation Service
If you know of someone who needs an SRA regulated solicitor to confirm their QWE but have no-one in their organisation to do so - we can help. This service would apply to someone who is NOT qualified as a lawyer. Please see the link below and feel free to signpost them to us:
QWE - External Confirming Solicitor Service - for Aspiring Solicitors
YouTube Videos on SQE, SQE2 Exemptions & QWE
https://www.youtube.com/@hunningsconsultancy999/videos
Information about employing an apprentice and how apprenticeship funding works – step by step guide and a good starting point. https://www.gov.uk/guidance/employing-an-apprentice-technical-guide-for-employers -
Government guidance for employers looking to take on an apprentice on the Gov.uk website: https://www.gov.uk/employing-an-apprentice.
These apprenticeship funding rules and guidance apply to employers. https://www.gov.uk/guidance/apprenticeship-funding-rules-for-employers
A link to our article summarising the SQE method for qualifying as a solicitor, which comes into effect in September 2021 and the QWE (Qualifying Work Experience) and how to start gathering that now, in advance): https://hunningsconsultancy.co.uk/the-new-sqe-exam-and-qualification-method/
If you are an Aspiring Solicitor looking to have your QWE (Qualifying Work Experience) 'Confirmed' so it counts towards your 2 year FTE requirement, then we can help. Here's a link to details: https://hunningsconsultancy.co.uk/external-qwe-certification-service-2/
A link to a page we have put together with the costs of some the SQE training providers - to save you some time in researching: https://hunningsconsultancy.co.uk/sqe-training-providers/
Whilst on this page may we invite you to take a look at our other services (see the drop downs at the top of this page). We provide all round Business Support for Law Firms, everything to allow a busy partner to get on with the client work. We have assisted over 350 law firms, direct access barristers and in house-legal. Everything from Compliance to on your Case Management System (LEAP, Proclaim & Clio), from Mentoring to Setting Up a New Law Firm. Ask about running your firm and we're probably able to help. 07887 524507 or [email protected].
Like many of my blogs or articles, the idea came from a comment made by a client. This was a small law firm in the Midlands (approx. 10 people).
2 partners told me that things started changing when they asked themselves if they were the blockage. I was impressed that they had the humility, courage and clarity of thought to step back and honestly ask the question. They were both very competent lawyers. They realised that, no matter how good they were, they couldn’t do it all.
The alternative was the same hamster wheel, which would ultimately wear them out, with no chance to enjoy what they wanted to do or plan for succession in due course.
Once that decision was made things flowed from it. Setting a clear goal and holding up decisions in the future against it enabled them to stay on course.
This applies right across aspects of business or personal life.
Are you the blockage?
A great contemporaneous example is the sudden change in working practices which the Covid Lockdown has forced upon business. Working from home, remote working, flexible working have all been held back by management’s objections. The Covid Lockdown meant that blocking that change was no longer an option if you wanted to stay in business. They simply had to find a way.
People don’t like change. It involves risk. It makes us feel uncomfortable. It may require extra effort. Inertia is one of the strongest forces in nature! Also, people don’t like having to face awkward questions. Lawyers and Accountants (perhaps all of the traditional professions) are naturally cautious. They are professionally trained to be so – as they spend their working lives trying to protect their clients from risk or clear up the mess after things have gone wrong. However, if a business is to progress, adapt, survive, take advantage of opportunities, it has to take risks and make changes.
Here are some questions you could put to yourself to find out if you are the blockage …
So – are you the blockage?
We have spoken with the SRA and been informed that they have emailed nearly 500 law firms with a request that by 14th August 2020 the firm completed a questionnaire and a declaration signed that the firm complies with the SRA Transparency Rules. A copy of the email is below. There is a link in it that the firm should click to bring them to the correct place to sign the declaration. It should be completed by the COLP. Please note that the link is particular to the firm, so we have disabled the link in this email so as not to compromise the client from whom we obtained this email.
Please check the junk mail of your COLP if this email does not appear to have come through.
Please do not delay - the deadline is 14th August to have completred this declaration. Thereafter they plan to contact firms (possibly in tranches of 600) every quarter in a similar way. We understand that the initial focus will be firms carrying out Immigration work.
If you need help ensuring that your website is indeed compliant with the SRA Transparency Rules then feel free to contact us. [email protected] or 07887 524507. We have already helped many firms. We have a package to help firms with this. Indeed it was a firm contacting us about this which alerted us. Here is a link to the package: https://hunningsconsultancy.co.uk/wp-content/uploads/2020/08/Flier-Transparency-Rules-and-GDPR-Review-Package.pdf
Here is a link to a blog we posted in November 2019 which contains the link to obtain your SRA Clickable Badge from the SRA, together with instructions on what to do: https://hunningsconsultancy.co.uk/compulsory-clickable-sra-logo-on-your-website-from-25th-november/
Below you will find the wording for the email.
"Dear XXX
We write to you in your capacity as the Compliance Officer for Legal Practice for OLD VICARAGE ADVISORY LEGAL (KEMPSTON) LIMITED, SRA ID 613473.
On 17 April 2020, we wrote to you about our enforcement of the SRA Transparency Rules (‘the Rules’). The Rules came into effect on 6 December 2018. They are designed to make sure consumers have accurate and relevant information about a solicitor or firm, allowing them to make informed choices. The requirement to display the SRA’s clickable logo (also known as the digital badge) came into effect on 25 November 2019, as part of the introduction of the Standards and Regulations.
We now require you to declare whether you have a website that is compliant with the Rules and displays the SRA’s clickable logo.
The deadline for completion of the declaration is close of business on Friday 14 August 2020.
The link below will take you to the declaration form. It will take around 10 minutes to complete and you will need to ensure the declaration is accurate before submission.
If your firm does not have a website, the declaration must still be completed to record this.
Complete the declaration at: URL for the Transparency Rules Self Declaraton for your firm (sorry - now removed by the SRA).
Is this compulsory?
Yes. We are requesting this information from each COLP on behalf of their firm under paragraph 3.3 of our Code of Conduct for Firms and 7.4 of our Code of Conduct for Individuals. There are no exceptions to this requirement. Your failure to respond may be a breach of our Codes of Conduct.
What will I need to know?
You will need the name and SRA ID number of your firm. You will also be asked basic questions about your website. The declaration will take around 10 minutes to complete.
Do you have any guidance?
We have produced guidance about how to comply with the Rules and our enforcement approach.
To help you understand the Rules and how to meet them we have issued guidance, alongside a Q&A.
To explain our approach to non-compliance you can view our enforcement strategy and the associated topic guidance.
Who can I speak to?
If you require further advice on complying with our Rules, you can contact our Ethics Guidance helpline on 0370 606 2577 or by e-mail at [email protected].
Yours sincerely
Robert Loughlin
Executive Director of Operations and Performance"
At last the Land Registry has moved into the modern age and recognised electronic signatures. They are now accepting dispositionary deeds (such as transferring , creating leases and securing mortgages) that have been signed with a witnessed electronic signature.
Here is a link to the updated Practice Direction: https://www.gov.uk/government/publications/execution-of-deeds/practice-guide-8-execution-of-deeds
Here is a link to the article on the Land Registry website: https://hmlandregistry.blog.gov.uk/2020/07/27/electronic-signatures-in-practice/
If you're looking for a reliable method to do this we can recommend some software that we sue for electronic signatures.
The UK the government has published details of the method for British National (Overseas) (BN(O)) citizens ordinarily resident in Hong Kong, and their immediate family members, to move to the UK to work and study. Please find this at the link here: https://www.gov.uk/guidance/british-nationals-overseas-in-hong-kong
This is the press release from the Home Secretary: https://www.gov.uk/government/news/home-secretary-announces-details-of-the-hong-kong-bno-visa
The new SQE regime came into effect September 2021. There are transitional arrangements for those who have started to train beforehand so they do not have to go back to the beginning.
The idea is to have 1 standard across the whole jurisdiction of England & Wales. Currently each organisation providing the LPC creates its own LPC course, so some employers are reverting to A levels as the last measure that is moderated to a national standard. The SQE will give a uniform measure. It will also cover areas of legal practice mixed in with the law itself. Ethical & conduct issues will be scattered throughout and candidates are expected to spot them and deal with them, rather than them being flagged up for separate attention. Finally, the training element is now much more flexible, adapting to the more varied ways that people gather relevant experience.
The cost of both sets of the exams is currently (2024-25) £4,790. This figure does not include preparatory courses which will vary between the various providers.
[Please note: SQE exam fees will increase for people sitting exams from October 2025 to:
SQE1: £1,934
SQE2: £2,974]
The Solicitors Qualifying Exams (SQE) is in 2 parts:
This is 2 exams, each of 180 multiple choice questions. 10 hours of exam time in total. The idea is to test candidates’ ability to identify legal principles and apply them to client problems and transactions. It will test core legal knowledge in the following subjects. SQE1 will take place at Pearson VUE test centres in the UK and internationally. The pass mark for SQE1 will be determined by a board of experts, drawing on the level competency expected of a solicitor on their first day at work.
· Business Law & Practice · Dispute Resolution · Contract · Tort · Legal System of England & Wales · Public Law · Legal Services |
· Property Law & Practice · Wills & Administration of Estates · Solicitors Accounts · Land Law · Trust · Criminal Law & Practice
|
There are 16 written and oral tests totalling 14 hours of exam time. They will be simulating tasks carried out by a solicitor in practice.
This is designed to assesses Practical Legal Skills for working with the law in practice. Candidates can only take the SQE 2 after they taken the SQE 1. It can be taken before the completion of the Qualifying Work Experience (QWE), but the SRA expect most candidates will take it after completed their 2 years QWE. It will assess both skills & law (50:50 weighting). Again, ethical issues will be embedded and it will be up to candidates to spot and deal with them. Areas covered are set out below.
Skills | In 5 Contexts |
· Client Interviewing & Attendance Note · Advocacy · Case & Matter Analysis · Legal Research · Legal Writing · Legal Drafting · Negotiating |
· Criminal Litigation · Dispute Resolution · Property Practice · Wills & Intestacy, Probate Administration & Practice · Business Organisation Rules & Procedures |
Qualifying Work Experience (QWE) is designed to be more flexible than the old method and to test a wider experience and suite of legal skills. There are opportunities in this for both trainees and businesses. It should make it easier for people to qualify through a wider variety of routes, for example in-house legal departments and advice centres as well as traditional law firms.
The trainee must be able to show at least 2 years relevant experience of legal services. This will have to be signed off by a solicitor, but this does not have to be a training partner in a law firm. So, it gives the opportunity for this to be outsourced should you wish.
The experience may be obtained in up to 4 different organisations – so summer placements can count, as can work in an advice centre. Time spent before the SQE comes in can count, so long as it has been monitored and a solicitor can vouch for it. There is no longer the requirement for work in 3 practice areas (although that would give a more rounded experience in our view).
The solicitor is signing of:
Benefits
For the Trainee Solicitor
For the Business
Firms may want to think what they want to do, who they want to attract and how they want to use the SQE to help them resource and grow their firm. They may want to revise what they say about this on their website.
We can be your External QWE Confirming Solicitor –
A link to a useful webinar about the SQE & QWE from the SRA: https://www.youtube.com/watch?v=xbbIIcC1f5k
A link to resource for Apprenticeships: https://www.apprenticeships.gov.uk/
A link to the SRA Transitional Arrangements: https://www.sra.org.uk/students/sqe/transitional-arrangements/
If you are interested in seeing how the Government Apprenticeship Scheme may assist with the costs of training then visit our article on this subject: https://hunningsconsultancy.co.uk/apprenticeships-the-sqe-how-this-can-save-you-money/
Link to the SRA suggested form for recording QWE: https://www.sra.org.uk/trainees/qualifying-work-experience/qualifying-work-experience-candidates/qwe-training-template/
Furlough Grants: Watch out for clawback of the grants made under the Job Retention Scheme. The Finance Bill is to receive it's 2nd reading in Parliament on 17th July and is expected to come into law by the end of this month. It will facilitate the clawback where the application was incorrect or fraudulent.
Here's a link to the passage and content: https://lnkd.in/eHK8ZHW
a good article produced by Herbert smith on the scheme (one of many): https://lnkd.in/eA_Z_MK
and a press article on the potential clawback: https://lnkd.in/eEZwAQT
The Law Society has published good advice - a Toolkit including a Risk Assessment Template. You will find it here:
The bill has now passed the House of Commons. It will not come into force immediately on Royal Assent to allow for careful implementation.
Here is a link to the article in the Law Society Gazette: https://www.lawgazette.co.uk/law/no-fault-divorce-to-start-in-autumn-2021/5104682.article?utm_source=gazette_newsletter&utm_medium=email&utm_campaign=No-fault+divorce+in+2021+%7c+Legal+aid+support+%7c+Systemic+racism_06%2f18%2f2020