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Estate Planning - A General Overview

Contributed by ISOLAS
10 June, 2020


In the amidst of COVID-19 take a step back, evaluate and plan. Here at ISOLAS LLP we WILL help and guide you during this time.

COVID-19 is undeniably a challenging time for us all. The unforeseen circumstances require that we stay at home and the effect of such requirement is that the majority of us have more time on our hands than ever before. Time to think, time to organise, time to take a step back, time to plan and time to evaluate. So, why not make the most of this time? This is an opportunity for each and every one of us to focus on and/or update our estate planning, which may previously have been neglected or put to the side.

Estate planning encompasses planning and consolidating how an individual's assets will be preserved, managed, or distributed, whether during a person's life time or after one's death. Whatever the concern, it is important for every individual or business to put their affairs in order, something which is often hard to do as the business of everyday life takes over.

There are a number of ways in which individuals may seek to estate plan. These may include from the simple establishment of a will for more straightforward estates, to more complex testamentary trusts where asset protection and longevity is an underlying consideration and more complex cross border corporate or trust structures for larger estates where there may be assets in various jurisdictions. Often in more complex estates there will be a mixture of requirements, including wills in different jurisdictions, tax planning, the consideration of inter vivos gifts and perhaps even a family governance structure for the transition of family wealth.

Succession planning is not easy and requires an understanding of the numerous issues which may arise in relation to the ownership of assets and the various family state of affairs that may affect individual interests. Here at ISOLAS LLP, we have the expertise to deal with such, we understand that COVID-19 is currently affecting each individual and/or business in a different way and therefore our intention is to work together to ensure that your interests are preserved and managed efficiently.

It can be said that the most common concern for individuals at present is the realisation of the importance of having at the minimum, a Will and this is something that can be considered and dealt with in the additional time provided by the need for isolation at home. This article has been created for the purpose of ensuring your understanding of the requirements for the execution and the witnessing of a Will, the effect of COVID-19 in relation to such execution and witnessing and to highlight the measures we have in place in order to ensure that this minimum level of testamentary arrangements can be validly concluded during this difficult time.

Estate Planning, Drafting your Will

Social distancing has forced individuals and firms alike to establish new measures when interacting and providing services. This has impacted the way we do business, particularly the manner in which services are being delivered and the way in which transactions get done. Fortunately, most contractual arrangements remain unaffected thanks to the increased validity of electronic signing, Wills however, come with their own sets of rules.

The formal requirements for signing a Will are:

  • the Will must be in writing, and the testator or testatrix (i.e. the person making the Will) must sign it, in their presence and at their discretion;
  • it must appear that the testator or testatrix intended by their signature to give effect to the Will;
  • the signature must be made or acknowledged in the presence of two witnesses physically present and who have line of sight on the testator signing the will; and
  • each witness must sign the will, or acknowledge their signature, in the presence of the testator or testatrix.

It should be noted that a person benefitting under the Will is not capable of being a witnesses and a Will that is witnessed by that person will have the effect of invalidating the granting of the gift or benefit under the Will to that person.

Are you over the age of 70?

As a firm, particularly in light of the prohibition imposed to those over the age of 70, we have approached the Government to consider whether an amendment to the law is necessary to allow individuals to put in place their testamentary arrangements with ease. In the interim, the usual requirements remain.

In the Interim - the requirement for physical presence in attesting a testator's signature:

The case law surrounding the requirement for the witnesses to be physically present, dates back to before the time when technological means was introduced to our working lives. Despite the ongoing deliberation on the validity of electronic signatures and the acceptance of the same in most contractual scenarios, this has never extended to the execution of a Will. The reasons for this are mainly due to sensitivities surrounding the making of a Will, such as possible fraud, undue influence and incapacity. Witnesses seeing a testator sign his/ her Will electronically, via a screen, does not allow a person to properly evaluate whether the testator has signed off his/ her own volition or indeed whether the testator is incapacitated in any way. For these reasons, the law requires witnesses not only to be physically present when attesting to the signature but also to ensure that the person signing is within a clear line of sight.

The necessary measures implemented by Government during the pandemic, for the safety of the public, create certain difficulties in concluding testamentary arrangements, in cases where individuals are unable to visit their lawyer's office to sign their Will. The inability to have a family member from the same household sign as a witness does not allow for Wills to be validly executed at home, during the isolation process. Similarly, the requirement for physical presence and proper vision on the testator signing the Will, leaves little option other than to have two independent individuals physically present albeit with a safe enough distance between them to meet Covid health and safety requirements.

What measures do we currently have in place so that you WILL get your Will?

The ability to make a Will is of paramount importance and ISOLAS LLP we are committed to assist our clients with their testamentary arrangements.

In order to comply with Government advice and recommendations, we have implemented a remote system of working and incorporated various mediums to allow us to interact with our clients' remotely. We are able to take initial instructions on various platforms such as Zoom/Skype/Facetime/WhatsApp/Emails or over the telephone. This will allow us to provide our clients with the necessary advice, gather the required information and proceed with the drafting of the Will.

For the purposes of executing the Will, our offices remain open and we have personnel available to serve as witnesses, however, we have implemented a strict process to ensure both the safety of our client and our staff. Hand sanitiser is available at our reception for those visiting as well as those already on the premises. Our offices are being cleaned numerous times during the day, to mitigate the risk of any contamination, A person coming in to sign their Will, will be able to do so, at a safe distance from those witnessing. Once signed, the testator is free to leave and any follow up can be concluded electronically. Individuals may either bring their own pens or the firm, will ensure that sufficient pens are available for single use by only one individual.

In the event where clients are unable to visit our premises, we can make alternate arrangements which will be discussed with each client to ensure that the necessary safety measures are observed and legal requirements are followed.

We acknowledge that for those who are over 70 this will not be easy given the law does not allow them to leave their homes, however, we are lobbying with Government to relax the requirements for execution of Wills during this period and are in the interim also considering a process whereby we can assist these individuals so that they are able to sign in the safety of their own homes in keeping with Government advice. We will discuss this with each client as the need arises.

If you would like to put in place your Will or you have any questions or require assistance with the execution of your Will please do not hesitate to get in touch with us and we would be happy to assist. .

Take advantage of this time

This is the time to ensure that your personal affairs are in order both practically and legally, with the purpose of safeguarding your assets, securing the position of your loved ones and guaranteeing that your wishes are carried out in any such way as you may intend. Please rest assured that here at ISOLAS LLP we have the expertise and mechanisms in place to assist with your estate planning during this COV-19 pandemic. Although, this article centres around the preparation and execution of a will as the simplest form of estate planning, we are also able to assist with more complex and cross border estates, which may require more detailed structuring.

In addition, ISOLAS LLP are committed to helping our community during this difficult time. As a result, for this interim period during the pandemic (and for so long as the Government measures on isolation remain in place) we are offering pro bono assistance for all of our community members who are over 60 and would like to put in place a standard Will.

If you would like any more information, please contact Partner Emma Lejeune on emma.lejeune@isolas.gi, Katrina Isola on katrina.isola@isolas.gi, or Paul Morello on paul.morello@isolas.gi.



Tags: Gibraltar | law


 


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