The ACT Government has recently introduced the COVID-19 Emergency Response Legislation Amendment Bill 2020 (ACT). This Act allows for certain legal documents to now be witnessed virtually, via an online platform.
The recent changes only apply to the following documents:-
- Affidavits;
- Wills;
- Powers of Attorney (Enduring and General); and
- Health Directions.
Up until recently, each of these documents were required to be signed in the sight and presence of one or more witnesses. That is, both the person signing the document and the witness(es) had to physically be in the same room at the same time.
For a defined period of time, Affidavits, Wills, Powers of Attorney and Health Directions can now be witnessed by audio-visual link. This is defined as a system of 2-way communication linking different places so that a person at any of them can be seen and heard at the other places, such as Zoom, Skype or WebEx. After witnessing the signing of a document, a witness will then sign a scanned or counterpart version of that document along with a statement confirming the signing and witnessing was completed in accordance with the special laws.
The other requirements as to the formal execution of Affidavits, Wills, Powers of Attorney and Health directions are still in force. For instance, in the case of a Will, there must still be two witnesses. These documents have strict formal requirements as to how they are signed and witnessed. If witnessed incorrectly, a document could be declared invalid or an application to the Court may be required seeking enforcement of the informal document.
These changes create an alternative means of executing Estate Planning documents for those who do not wish to attend a face-to-face meeting, whether they are self-isolating due to illness or otherwise, during the pandemic.
At Tetlow Legal our preference, where possible, is meeting clients face-to-face while witnessing important documents such as Wills and Enduring Powers of Attorney. In doing so, we observe social distancing requirements and good hygiene procedures.
Additionally, by witnessing the document at our office, we are able to confirm the exact circumstances in which the document was witnessed. This can reduce, for example, a Will’s vulnerability to challenge. Examples of such challenges include allegations that a person lacked knowledge or didn’t approve of the contents of their Will or Enduring Power of Attorney, or that they were subject to undue influence or fraud.
If you are considering updating your Estate Planning documents or if you don’t currently have a Will or Enduring Power of Attorney, please contact Bede, Emma or Brian on (02) 6140 3263 or by emailing [email protected].