Here we answer some of your questions about signing and witnessing requirements for your Wills and Powers of Attorney in the era of COVID-19 as well as possible protections to include in your Wills.
Please note this information was prepared in relation to signing Wills and Enduring Powers of Attorney prepared in the ACT, there are differences in the rules that apply in NSW and around Australia.
1. How can I sign my Will if I am self-isolating?
Our preferred and usual way for Wills to be signed is for you to attend our office, where your Will is signed by you in the presence of the lawyer who prepared the Will and another staff member.
You could say this is the “gold standard” for signing Wills and in the past about 99% of Wills we have prepared for our clients have been signed in this manner.
This approach ensures that the strict legal requirements for signing a Will are all met.
We appreciate that in the circumstances we now all face in the era of COVID-19 our usual approach may not always be possible.
At this stage we are still able to meet with you in person at our office to sign your Will. We will ensure that this physical meeting takes place as quickly as possible, with all discussions and finalisation of the documents taking place via phone or video conference prior to the signing. We are using our boardroom for all face to face meetings to accommodate social distancing requirements.
If this is not possible, we will work out a solution for you that allows your new Will to be signed in a manner that accommodates your circumstances.
The laws in the ACT already recognise that not every Will can be made in circumstances that comply with the normal strict legal requirements for a valid Will. A discretionary power is given by legislation to the Court to approve Wills that do not otherwise comply.
While applications to the Court to approve otherwise invalid Wills is a useful backup, these can often be time consuming and expensive. There is also no guarantee that an invalid Will would be approved by the Court.
In tailoring a solution for you, we aim to ensure as best we can that you make a valid Will in a way that best suits your circumstances.
2. How can I sign an Enduring Power of Attorney if I am in social isolation?
The law in the ACT requires that an Enduring Power of Attorney is signed by you in the presence of two witnesses one of whom must be a “qualified person”.
The law also requires that both witnesses certify in writing that you have signed the Enduring Power of Attorney:
- voluntarily; and
- having understood “the nature and effect of making the [Enduring] Power of Attorney”.
A “qualified witness” is not just a lawyer but includes anyone authorised to witness the signing of a statutory declaration.
As for your Will, we will work with you to organise a solution for the valid signing of your Enduring Power of Attorney.
3. Who should NOT be a witness to my Will or Enduring Power of Attorney?
In the case of witnessing a Will, the following persons should NOT be a witness:
- A person who is a beneficiary under the Will.
- Anyone under 18 years of age.
While having a beneficiary as a witness to your Will in the ACT does not automatically invalidate your Will, it can often create time consuming and expensive difficulties in the future. There are circumstances where this still might be preferable to not having a Will at all, however this approach should only be used with extreme caution and with appropriate legal advice.
In the case of witnessing an Enduring Power of Attorney, the following persons should NOT be a witness:
- The partner or child of the person making the Enduring Power of Attorney.
- Any person appointed to act as an Attorney under the Enduring Power of Attorney.
- Any person under 18 years of age.
4. I am concerned about the financial security of my loved ones in the current crisis. What can I do in respect of my will?
COVID-19 has put many individuals and families under severe financial stress. Given the current climate, it is possible there will be an increase in individuals or businesses filing for bankruptcy.
Having a Testamentary Trust Will can give considerable protection for your beneficiaries who are at risk of bankruptcy.
Here is an article which goes through some of the protections offered by a Testamentary Trust Will.
As always if you have any questions please do not hesitate to get in contact with us, or see our website here for more articles on Estate Planning.