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Where there’s a will, there’s now a way

24 April 2020

#Private Client Practice, #COVID-19

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Where there’s a will, there’s now a way

Many of you, like us, will have been grappling with continuing to meet the formal witnessing requirements of many documents, whilst observing the social distancing and essential travel only restrictions.

It’s good to see we are making progress.

Queensland

The Queensland Parliament have now passed the COVID-19 Emergency Response Bill 2020 which gives the Queensland Government the power to make regulations allowing the witnessing of documents remotely by way of video conferencing.

We await the regulations.

In the meantime Chief Justice Catherine Holmes has issued a practice direction (PD) dealing with informal wills. This PD is limited in application to wills signed between 1 March 2020 and 30 September 2020.

Put simply, an informal will is a document which does not comply with the formal signing or format requirements. You may have heard about various informal wills being approved by the Court in the past, such as a will made by video, an unsent text message or wishes written on Post-It notes. Because the document hasn’t been prepared strictly in accordance with the rules, an application to the Court is required and the matter goes before a judge to decide whether or not the document is a valid will.  Applications such as these are costly and time-consuming.

The PD now allows the registrar in certain situations to decide informal will applications and dispense with the formal requirements that a witness be in the physical presence of the testator subject to the provision of certain evidence. Principally, the requirements are that the will was drafted or witnessed by a solicitor and the testator signed the document in the presence of two witnesses by way of video conference.

There is currently no relaxation of the signing and witnessing requirements of enduring powers of attorney in Queensland.

NSW

The NSW Government has passed regulations allowing witnessing of all the following documents by video conferencing:

  • a will
  • a power of attorney or enduring power of attorney
  • enduring guardianship documents
  • a deed or agreement
  • an affidavit
  • a statutory declaration.

As of 22 April 2020, all of the above documents can be signed and witnessed in counterparts by video conference, subject to the inclusion of the relevant attestation clause. Click here to read more about the legislative reform in NSW.  

The accommodation provided by these amendments has certainly brought relief to a number of lawyers and their clients alike. However, such measures need to be treated cautiously as they still contemplate a high level of involvement of a lawyer at the time of drafting.

So now is not the time to rush out and start drafting your will on your cereal box.

Given the different nuances between the approaches the different states are taking, if you have signed a will or an enduring power of attorney electronically under any of these relaxations, we recommend that you undertake to re-sign everything physically and in accordance with the formal rules as soon as it is safe and you are able to do so.

Our team at Holding Redlich are ready, willing, and able to assist you or your clients to ensure documents are signed and witnessed validly in these difficult times.

Author: Laura Hanrahan

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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