One of the positive side effects for some of us who have a bit of extra time on our hands is it’s an opportunity to get our house in order. One of the other projects many people put off for years is reviewing estate plans and preparing or updating their wills.
No one wants to talk about death and the impact it has on those you leave behind but it is important to discuss and plan while you are all healthy and able to calmly consider the consequences and what you want to achieve if the catastrophic was to happen to you or a loved one.
Social distancing is no barrier to reviewing your estate plans. We may be working remotely but we have facilitated the process online with many clients in the last month.
One of the main requirements to ensure a will is valid is that the will maker must sign their will in the physical presence of two independent witnesses. Nowadays complying with this is problematic as most Australians are currently unable to be in the physical presence of two independent people.
If a will is not witnessed by two independent witnesses, then it is called an ‘informal will’ as it has not followed a formal execution requirement.
While courts in most States have the power to dispense with meeting this formal requirement, it is a costly process for the estate and one which should be avoided, when possible.
Below is a summary on how each State in Australia has responded to the current pandemic, to allow informal wills that were signed during these uncertain times to be accepted by the court or otherwise validated.
The Supreme Court of Queensland has issued new guidance to state that where certain prerequisites can be met, the Registrar (being the official keeper of court records) can hold a will to be valid, despite being informally executed and without the need to go before a judge in court. These prerequisites are:
- the will was drafted by a solicitor, a solicitor is one of the witnesses to the will, or the solicitor supervised execution of the will;
- the deceased intended the document to take effect as their will;
- the deceased executed their will in the presence of at least one person by way of video conference [but not physically];
- The witness/witnesses were able to identify the document executed; and
- A statement that the reason the deceased was unable to execute their will in the physical presence of two witnesses was because it was government enforced, recommended or self-imposed due to COVID-19.
Legislation was also introduced on 22 April that has the ability to allow for documents to be valid if signed and witnessed using technology. For now, it remains unclear as to whether it will be used for this purpose as it has been used in New South Wales.
New South Wales
New South Wales has passed legislation that enables wills to be validly witnessed by a person through an audio-visual link, such as Skype [therefore not physically present].
However, there are specific rules that must be complied with to ensure the audio-visual witnessing is valid. These are:
- The person witnessing through the audio-visual link must see the person’s face who is executing the will, observe the person signing the will and be satisfied they are witnessing the same document that is being signed;
- The witness must then verbally specify the method used to witness the signature and that it was witnessed in accordance with the regulation invoked by the pandemic;
- It is then recommended the witness either sign the document as soon as practicable, whether the original [by post], or a scanned copy [by fax or email].
The Law Institute of Victoria has released materials that directs lawyers on how to manage issues with signing wills.
These are largely disappointing as they are focused on getting off risk on issues and provide very little practical guidance on how to assist clients.
For now, no legal changes have progressed.
There has been no movement in Tasmania, only the emphasis on re-iterating what makes a valid Will in this time of crisis has been issued.
The SA Law Society has written to the Attorney General seeking emergency measures to be introduced on a temporary basis in a response to COVID-19.
There is no mention on the details of these measures, but change could be on the horizon shortly.
The Attorney General is looking into this as we speak with an expectation that they will bring in electronic signing measures.
There has been no discussion on looking into alternative ways to formally execute a will, or validate an informal will.
Australian Capital Territory
The ACT Law Society is monitoring the COVID-19 situation carefully.
No process on the execution of Wills has come up for discussion as of yet.
What can I do?
If you are thinking about getting your estate planning in order while you have some time on your hands, feel free to reach out and we will get the process going for you. Otherwise, we have lots of resources on our website that may help you to start thinking about your position on a few critical items for your affairs. These include:
- Busting myths when it comes to making your will: https://businessdepot.com.au/blog/biggest-misconceptions-about-making-a-will/
- Information on making provision for people in your will: https://businessdepot.com.au/blog/proper-provisions-when-making-your-will/
- Things you should think about before leaving specific gifts in your will: https://businessdepot.com.au/blog/4-considerations-before-you-leave-specific-gifts-in-your-will/
As the above situation is changing weekly, if not daily, we highly recommend you seek legal advice before executing your will to ensure you are aware of all options for execution.
General Advice Disclaimer
The information provided on this website is a brief overview and does not constitute advice, whether financial, accounting, taxation, legal or any other type of advice. We endeavour to ensure that the information provided is accurate however information may become outdated as legislation, policies, regulations and other considerations constantly change. Individuals must not rely on this information to make a financial, investment or legal decision. Please consult with an appropriate professional before making any decision.