5 June 2020

Will Making During a Pandemic – A Dilemma for Estate Lawyers & the Willmaker

Barbara Houlihan
Barbara Houlihan Litigation Lawyer

The onset of the COVID-19 pandemic with its associated lockdown and social distancing and isolation restrictions created a dilemma for estate lawyers and the willmaker.

The longstanding strict requirement that a Will must be signed by the willmaker in the physical presence of two (2) witnesses (not being a beneficiary or the spouse of a beneficiary) gave rise to practical obstacles particularly for those who, due to age or compromised health, needed to remain in isolation.

On 15 May 2020, the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 under the COVID-19 Emergency Response Act 2020 (subsequently amended on 21 May to extend its application beyond Wills and enduring documents) was introduced. It remains in force until 31 December 2020 and applies to Wills signed until then.

It follows Practice Direction No 10 of 2020 released by the Chief Justice on 22 April 2020 which applies to Wills executed between 1 March 2020 and 30 September 2020.

The Regulation

The significant feature of the Regulation is that it permits, in certain circumstances, the witnessing of Wills by audio-visual link, dispensing with the requirement for the witnesses to be in the physical presence of the willmaker, and each other.

It does not change the required number of witnesses, namely two (2), to the signing of a Will.

The Regulation requires that at least one of the witnesses must be a  Special Witness. A Special Witness includes an Australian lawyer or a Justice of the Peace or Commissioner for Declarations employed by the law practice that prepared the Will and who witnesses the Will in the course of that employment, a Notary Public, and for Wills prepared by the Public Trustee, an employee of the Public Trustee.

The Requirements for Signing a Will Witnessed by Audio-Visual Link Pursuant to the Regulation

  1. Audio-visual link is defined as “facilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes video conferencing”;
  2. The witnesses must observe the signing and be satisfied the signatory is signing the Will;
  3. The witnesses must form that satisfaction in real-time;
  4. The signatory must sign each page of the Will;
  5. The witnesses must be satisfied that the signatory is freely and voluntarily signing the Will;
  6. The witnesses must take steps to verify:
    • the identity of the signatory; and
    • that the name of the signatory matches the name of the signatory written on the Will;
  7. Once the Will using audio-visual technology has been signed in front of the witnesses, it must be sent to them either:
    • by posting or couriering the originally signed document; or
    • emailing a scanned copy of the signed
  8. The special witness should then:
    • print the document (if sent electronically);
    • sign each page;
    • complete and sign the special witness certificate to accompany the document;
    • forward it to the second witness to sign.

The Will must then be returned to the willmaker or to a person to whom the willmaker directs.

Special Witness Certificate

The Special Witness Certificate must be kept with the Will. It must state:

  1. That the Will was signed and witnessed during the relevant period; and
  2. That the Will was signed and witnessed in accordance with the Regulation; and
  3. The steps the witness took to verify the identity of the signatory; and
  4. The process followed for signing and witnessing the Will; and
  5. That the Special Witness is a Special Witness; and
  6. Whether an audio-visual recording was made of the signing and witnessing of the Will; and
  7. Any other matters the Special Witness considers relevant to the signing or witnessing of the Will.

Practice Direction 10 of 2020

The Practice Direction issued by the Chief Justice authorises the Registrar to grant Probate of a Will witnessed by video-conference in the following circumstances:

  1. The Will is executed between 1 March 2020 and 30 September 2020;
  2. The willmaker is unable to comply with the formal requirements governing Will execution due to the Covid-19 restrictions;
  3. The Will is witnessed by either one (1) or two (2) witnesses in the presence of the willmaker by way of video-conference;
  4. A solicitor is involved in the process by either:
    • being the drafter of the Will; or
    • being a witness to the signing of the Will; or
    • supervising the execution of the Will; or
  5. The willmaker intends that the Will is to take immediate effect as his or her Will; and
  6. The witnesses are able to identify the document as being a Will.

Observations Generally

The relaxations permitted by the Practice Direction and the Regulation provided a welcome relief for willmakers and their lawyers previously impeded by the COVID-19 restrictions. Nevertheless, it is recommended that the permitted relaxations should be applied with caution and used only when absolutely necessary for the following reasons:

  1. The act of execution of Wills pursuant to the Regulation and Practice Direction is by necessity far more complex and involves significant more record preparation and record-keeping than required in the traditional Will execution process;
  2. The audio-visual facility may not adequately enable the witnesses, in particular the Special Witness, to make an assessment as to the testamentary capacity and/or absence of duress of the willmaker;
  3. The process of later proving the Will is likely to become more complex and costly.

It is recommended that as soon as the opportunity arises, and provided there is no legal impediment to doing so, the Will should be re-executed pursuant to the traditional process whereby the willmaker and the two (2) witnesses are in each other’s physical presence at the time of execution.

How We Can Assist

Our Wills and Estates Team can assist you or any family member overcome any will making or Enduring Power of Attorney issues or difficulties presented during this COVID-19 environment.

 

 


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

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