In line with UK and Scottish Government guidance, and to safeguard the wellbeing of our colleagues and clients during the COVID-19 outbreak, Shepherd and Wedderburn’s lawyers and support staff are currently working remotely. This has allowed us to maintain a ‘business as usual’ service to our clients. We continue to offer specialist advice on wills, Powers of Attorney, trusts and tax planning, all of which are particularly relevant to clients in the current circumstances. Our private client team has always tailored its approach to each client’s unique circumstances, and this situation is no different.

Can I write a will while social distancing?

Will instructions can be taken by video meeting (using services such as Microsoft Teams, Skype and Facetime), telephone and email, in most circumstances. A draft Will can be sent to clients by email or post for review, followed by a video or telephone call to go through the document. The final Will can either be emailed to the client to print at home (if that is possible), or posted to them. Once signed, the Will can be returned to our office for secure storage.

Many of our clients have relocated to different jurisdictions, while maintaining a base in the UK. We are well versed in taking instructions and executing documents at a distance, with no need for face-to-face meetings.

In order for a Will to be ‘probative’ or self-proving, the testator’s signature must be witnessed. We understand that during these times of self-isolation and social distancing, this is usually difficult. The Law Society of Scotland has confirmed that witnessing a signature via video meeting is valid and we share this view. We are regularly having video meetings with clients for this purpose.

How do I grant a Power of Attorney via video call?

Powers of Attorney (both for financial and welfare matters) enable nominated individuals to take personal financial and welfare decisions on a person’s behalf in the event of their incapacity.

As a protective measure for the client, there is a statutory requirement that a solicitor or medical practitioner must interview the granter immediately before they sign the Power of Attorney document. The Office of the Public Guardian and the Law Society of Scotland have updated their guidance on this certification requirement in light of the current circumstances. They have confirmed that the client interview can take place at a video meeting (but not over the telephone).

This change allows clients to instruct and complete a Power of Attorney without a face-to-face meeting with their solicitor. We do remain mindful, however, that a client must have sufficient mental capacity to make a Power of Attorney, and not be under any undue influence to execute the deed.

What is an Advance Directive?

We are currently receiving more requests for information about Advance Directives. An Advance Directive is more commonly known as a “Living Will”. An Advance Directive is a document which records a person’s wishes regarding end of life care. It sets out circumstances under which a person would not want to receive certain life-sustaining medical treatments, and the kinds of medical treatment they would wish to refuse if they became seriously ill in the future, and were incapable of making healthcare decisions.

The aim of an Advance Directive is to advise the medical professionals of these wishes if a person is unable to do so physically due to mental incapacity or an inability to communicate. An Advance Directive is often seen as augmenting the terms of a Welfare Power of Attorney, but unlike a Welfare Power of Attorney, it is non-legally binding – it is rather an expression of wishes than a prescriptive set of instructions.

Why now is the time to be thinking about tax planning

We regularly advise clients on tax mitigation strategies as part of their overall family succession planning. As in many other areas of life, the COVID-19 pandemic is making people review their plans. When an individual is thinking about making gifts, other than cash gifts, they should consider whether the gift would trigger a capital gains tax liability. The recent fluctuations in the stock market present opportunities here, as potentially more investments can be sold or transferred to a donee without incurring an immediate tax charge.

The current rates of capital gains tax (10%/20% and 18%/28% for residential property) are relatively low compared to historic rates. Prior to 2008, capital gains were charged at the same rates of tax as savings income. We find that many clients choose to pay capital gains tax of 20% now, in the hope of avoiding paying 40% inheritance tax on the same asset following their death.

The UK Government’s debt may exceed £2 trillion by the end of 2020, with more than £200 billion of new borrowing due to the COVID-19 pandemic. Given the certainty that the UK and Scottish Governments will need to take measures to start to repay this debt, tax increases in some shape or form are expected, if not inevitable. Clients may therefore wish to look to undertake a tax planning review now, taking advantage of current tax rates, given the expectation of tax rate rises in the short-medium term.

Many clients also use trusts as part of their tax planning strategy, including transferring business assets and agricultural property into family trusts. At present, these types of property enjoy full relief from inheritance tax on death and also within a trust. These valuable reliefs have been under the Government spotlight for some time. Following a brief from the Chancellor in January 2018, the Office for Tax Simplification has since published two reports covering a wide range of administrative and technical aspects of inheritance tax.

Proposed recommendations were presented to Parliament in July 2019, including a proposal that the current generous lifetime gifting allowances should be replaced with a single personal annual gift allowance. The implementation of these recommendations would lead to higher tax revenues for the Government. In light of this and given the pressures to start to chip away at the huge burden of debt created post-COVID-19, clients are advised to discuss options and allowances that remain open just now, sooner rather than later, before such may begin to be reduced/withdrawn.

Conclusion

We understand the unprecedented challenges facing our clients at this time of national and international crisis. Though face-to-face meetings may not be possible, our intention remains to do everything we can to advise and support our clients with practical legal and tax advice through these difficult times.

For tailored advice on these or related matters, please contact your usual Shepherd and Wedderburn contact.

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