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August 9, 2022

Some things don’t go out of fashion, but you have to move with the times

If we wound the clock back to 18 years ago when I began my career as a private client lawyer, we couldn’t possibly have predicted what we’d be dealing with now. Or rather, how we’re dealing with it. Harriet Atkinson, senior consultant at Bellevue Law, writes on current trends

From the rapid growth of technology enabling online meetings around the world, to digital execution of documents, and issues relating to the ownership and control of digital assets like cryptocurrency and social media accounts.

What constitutes a “family” has changed dramatically in the past two decades and the private client sector has responded to the legal considerations brought by this cultural shift. Legislation has caught up with the changes with the introduction of civil partnerships in 2005, updates to the legal arrangements for assisted reproduction under the Human Fertilisation and Embryology Act 2008 and same-sex marriage in 2014 and there is increasing awareness of the legal issues around surrogacy arrangements. As an industry, we are more aware of the potential issues facing modern families and the need to ensure that a client’s personal circumstances, or lifestyle, are considered in the context of succession and tax planning.

Modern lifestyles and practices have also been responsible for bringing the legal industry into the digital world. When the pandemic hit, whilst some forward-thinking organisations were already used to flexible working, others struggled with the transition to online-by-default. When I think back to the beginning of my career, it would have been unheard of to use a laptop in a meeting. It was (branded!) pads and pens, and all my meetings were in person. In the past two years meetings on Zoom, electronic documents and signatures and file sharing have become normal. I’m now far more likely to have my laptop in a meeting than a counsel’s notebook.

One noticeable trend we have seen since the pandemic is more young people are keen to get their assets in order and seek help preparing a will. Habits around what people include in their wills are also changing. Unsurprisingly, the approach of Gen Z is different from previous generations. A recent Legal & General survey on will making revealed that Gen Z are more likely to be concerned with wanting to make provisions for their pets, or for their care, in their absence.

The digital world we inhabit meant that, during the pandemic, we were able to use video witnessing of wills (which currently remains possible, legally, until January 2024) and, by the start of the pandemic, most probate applications were already being filed online. There is, however, only so far we can go in the digital age in relation to execution of powerful documents such as wills or lasting powers of attorney (LPAs). There have been recent Law Commission consultations on modernising both the process for making wills and LPAs but we are still a long way from being able to execute either document electronically due to the real risks of undue influence or fraud against the testator or donor.

Another area presenting increasing challenges relates to ownership and control of digital assets and how such assets are dealt with in wills and the probate process. Today, most testators will have an email account at the very least, probably be active on social media and might even own cryptocurrencies or NFTs. Digital assets can have financial and sentimental value and are therefore a key part of a client’s estate and tax planning. Practitioners are increasingly aware of the importance of clients creating an inventory of digital assets and for clients holding cryptocurrency they need to consider where to leave information for their private key. However, access to digital assets post-death still presents significant legal and financial issues, particularly given the volatile nature of these assets. Some providers have legacy tools which enable access to an account after the account holder’s death, and there is more awareness around this issue. Unfortunately, perhaps inevitably given the fast pace of innovation, the legislators lag behind.

With advances moving quickly, and technology becoming far more prevalent in everyone’s personal and professional lives, those of us in the sector need to ask ourselves, what practices do we need to retain and what should we refresh?

The idea of one-day having video testimonial wills might seem great in theory, but we need to put more thought into the safety of testators who are being subjected to coercion or influence?

The same applies to DIY Wills. Whilst they provide a seemingly straightforward process that broadens access to creating a will, without professional advice, these can often lead to testators creating unintended and complex situations which can cause huge delays and increase costs to remedy.

It’s important to take stock of how far we’ve come in terms of flexibility, significant cultural shifts, and digitalisation, but it’s equally as important to retain the cornerstone values which have remained untouched since the profession began. Some things just won’t go out of fashion, including the bond you create with your client, client service levels and tailored drafting based on an individual’s circumstances.

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