There are strict signing rules for Wills, enduring powers of attorney and many other documents. With self-isolation rules in force, it can be difficult to comply with signing rules at the moment. So, what can I do if I have documents to be signed?
In response to the realities of a COVID-19 world, both Queensland and New South Wales have introduced special rules for the witnessing of documents, including Wills and enduring powers of attorney.
On 22 April 2020, the Queensland Parliament passed the COVID-19 Emergency Bill 2020. The Bill contemplates regulations to be made to allow remote witnessing of documents in response to the COVID-19 pandemic, and these are expected shortly. It is likely they will be similar to those provided by the Supreme Court for Wills and other documents, and the regulations made in New South Wales (discussed below).
The Queensland regulations may also apply to the witnessing of superannuation binding nominations. However, the New South Wales regulations do not.
In the meantime, the Queensland Supreme Court released a practice direction, which provides that a Will signed in the following manner can still be admitted to probate as a validly signed Will even though it does not satisfy the usual formal witnessing requirements:
- the Will was drafted by a solicitor, or a solicitor is one of the witnesses or supervised the witnessing
- the Will is signed in the presence of one or two witnesses, who can be present via video conference (the witnesses do not need to be physically present)
- the witnesses can identify the document being signed (the document is shown to them via the video link, or, even better, a copy is sent them by email)
- the reason for witnessing the Will via video conference is due to COVID-19 restrictions.
While not provided for in the practice direction, we recommend the following:
- The witnesses sign a statement confirming they viewed the person signing the Will, and how they identified the documents (via the video conference or a copy sent to them). The statement should then be kept in a safe place or with the original signed Will (if possible).
- The person signing their Will notes the names and address of their witnesses on the Will.
Alternatively, the witnesses could also sign a copy of the Will (if provided to them) at the same time.
The practice direction only applies to Wills signed between 1 March 2020 and 30 September 2020.
New South Wales
New South Wales has enacted the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020. These regulations also allow for the witnessing of documents including Wills, enduring powers of attorney, deeds and agreements via an audio visual link and will apply to documents signed and witnessed between 22 April 2020 to 22 October 2020.
To comply, the witness must be able to:
- see the person sign the document in real time via an audio visual link
- confirm the signature was witnessed by signing the document or a copy of the document
- be reasonably satisfied the document they are signing is the same document, or a copy of the document
- include, on the copy of the document the witness signs, a statement that the document was witnessed by video conference and in accordance with the regulation.
Importantly, the witness must, as soon as practicable, confirm they witnessed the signature by signing a copy of the document, or a scanned copy of the signed document.
Currently the guidelines and regulations between Queensland and New South Wales are different, and the other states and territories have not yet provided guidelines or regulations for alternative witnessing arrangements. This means that caution will need to be exercised when you are signing, or witnessing, documents.
If a Will or enduring power of attorney is not witnessed correctly and in accordance with any alternative regulations, there is a risk the documents will not be valid. See our previous article about the difficulty with improperly witnessed Wills.
In all cases, remote witnessing of documents should be a last resort. However, if the regulations and guidance are followed, these measures provide relief for those needing to complete their estate planning and other documents during the COVID-19 pandemic.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.