Coronavirus and Social Distancing – How Do I Sign My Will?

3 April 2020

The law requires wills to be signed in the presence of two witnesses, who cannot be beneficiaries under the will. But with the outbreak of COVID 19, many people are wondering how they can validly sign their wills whilst still practising social distancing. This is a pressing question, especially as there has never been more important time to have a valid will. Click here for our article on the importance of estate Planning in these difficult times.

Thankfully, there are some solutions available right now – with the promise of further solutions (hopefully) in the weeks to come.

UPDATE: On 22 April 2020, the NSW government announced a new regulation under the Electronic Transactions Act 2000 that allows for certain documents, including wills, powers of attorney and appointments of enduring guardian, as well as  affifavits and statutory declarations, to be witnessed by audio visual link, such as a Zoom conference. This article has been updated to incorporate the new law.

One solution is to have the will signed in an environment where the witnesses know precisely what must be done, and how to do it while carefully practising social distancing. At Somerville Legal, we have witnessed several clients’ wills with two staff members several metres away from each other and from the clients. In this way, physical distancing is observed, but the actual signing of the will is still witnessed in accordance with the requirements of the Succession Act.

Another solution is provided by section 8 of the Succession Act. This states that if the Court can dispense with the usual requirements for a valid will if there is sufficient evidence that the will-maker (also known as a ‘testator’) intended a document to form his or her will. There are several ways to satisfy the Court in this regard. For example, the testator could sign the will with no witnesses, but make an appropriate notation on the pages of the will to the effect that the testator intends the document to form his or her will even though it is not signed in accordance with the legislation. Or, even better, a conversation between the testator and his or her solicitor in which the testator makes it clear that he or she wants the will to be effective in its current form, with the solicitor keeping an appropriate note of that conversation.

Also, if it is possible to have one witness, even if a second cannot be found, this is still better than none.

Of course, ideally leaving the decision in the hands of the court pursuant to section 8 should be a last resort. But what to do in circumstances where you are unable or unwilling to see your lawyer to sign the will, and want to avoid if possible leaving the matter to a section 8 application?

As of 22 April 2020, the NSW government has provided a solution, by way of a new regulation under the Electronic Transactions Act 2000, which changes the requirements for validly executing a document under:-

  1. The Succession Act (ie a will);
  2. The Powers of Attorney Act 2003 (ie a power of attorney);
  3. The Guardianship Act 1987 (ie an appointment of enduring guardian); or
  4. The Oaths Act 1900 (ie an affidavit or statutory declaration).

Ubder the new regulation, a solicitor can witness any of the above documents being signed by way of audio visual link such as a Zoom conference. The solicitor can then sign a copy of the document provided he or she is satisfied that it is the same document and he or she inserts a statement that it has been signed in accordance with the new regulation.

The new regulation will remain in force for a maximum of 6 months or such earlier date as parliament determines.

Accordingly, there is now a simple method to enable a will (or a power of attorney, guardianship or affidavit) to be validly signed and witnessed, even though the witnesses may not be physically present. This will provide significant peace of mind for Australians, that their estate planning affairs have been discussed with a lawyer, and all documents validly signed.

For more information, please contact Somerville Legal’s Stephen Lynch, Accredited Specialist in Wills & Estates, on 9923 2321 (North Sydney office) or 49278077 (Newcastle office).

 

 

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