23 April 2020

Can Documents be Witnessed by ‘Mobile Phone’ During the Pandemic

Charlie Young
Charlie Young Litigation Lawyer

Social distancing, isolation and quarantine restrictions brought on by the coronavirus have made it difficult, and sometimes impossible, for persons to make and/or get witnessed certain legal documents. Charlie Young discusses how the law is playing catch up to address this problem.

Documents such as Wills, enduring power of attorney instruments, deeds and statutory declarations each require some form of witnessing.

There can be major financial implications where a person is unable to make one of these documents due to the current restrictions in place.

Late Wednesday night (22/04/2020), the Queensland Parliament passed the COVID-19 Emergency Response Bill which was a step towards addressing this ‘witnessing issue’ caused by the current coronavirus restrictions. More laws will no doubt follow.

As of Thursday (23/04/2020), there has been a significant shift by the Supreme Court of Queensland in relation to the witnessing of Wills.

The ‘Corona Will’

A will-maker’s signature must be witnessed by two persons. The Court can ‘approve’ (probate) a Will not properly witnessed but it is difficult, often risky and requires a hearing before a Judge.

However, for Wills that cannot be witnessed properly due to COVID-19 isolation or quarantine restrictions, the Court has made a direction which essentially means that people will be able to make ‘Corona Wills’ knowing there is a very good chance they will be approved (probated).

There are several requirements for a Corona Will, which include:

  1. It having at least one witness;
  2. That witness being ‘present’ by video conference; and
  3. A solicitor drafted the Corona Will, or was a witness or supervised its signing.

It is unclear at this stage what is meant by ‘video conference’; presumably, this includes where a witness is on a mobile phone application such as Skype, Zoom or Facetime and witnesses the will-maker’s signature that way.

This change will prove to be very useful during the pandemic, but it is not a sign that everyone can assume they can now get Corona Wills witnessed by a friend using their mobile phone.  There are other requirements.

Also, this only applies to Wills made in March to September this year (at this stage).

As to whether laws will be made permitting other documents to be witnessed by mobile phone, we will no doubt find out soon.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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