For a Will to be valid it must be signed in the presence of two people who also sign your Will as witnesses. The current COVID-19 pandemic means that meeting with two other people may put your, or their, health at risk, and may be against the government's guidelines (depending on where you reside).
So, how do you sign your Will in these circumstances?
Can I sign my Will without witnesses?
If you are unable to find two independent witnesses (that is two people who are not family members, beneficiaries, or spouses of beneficiaries under your Will), unfortunately the answer is you may not be able to properly sign your Will. If your Will is not properly signed, significantly more work is required after your death to make it effective, and sometimes the Will cannot be accepted as effective.
But, if you find yourself in exceptional circumstances where you must sign your Will and you do not have access to two independent witnesses, there are steps you can take to informally sign your Will.
Making an informal Will
We have provided some tips below however, you must seek legal advice before implementing any of the following.
- Make a written note explaining why you could not sign your Will in the presence of two witnesses, and that you intend the signed document to be your last valid Will. Sign and date this written note and keep it with your original Will.
- Arrange a video conference with your lawyer so they can observe the signing.
- Video yourself signing the Will. In this video explain why you could not sign your Will in the presence of two witnesses, and that you intend the signed document to be your last valid Will.
- Take copies or pictures of the Will and send the original signed Will to your lawyer.
If you do informally sign a Will, then you must re-sign your Will in the presence of two witnesses later when you are able to. Once your Will is re-signed in the presence of two witnesses, you will then have a Will that meets the formal signing requirements.
Risks of informal Wills
If you die before you can formally sign your Will, the only way to have an informally signed Will accepted as your last valid Will is to apply to the Court after your death. The court will then need to determine whether or not the informally signed Will will be your last valid Will. These court applications are expensive, and, even if you follow the above tips, it is not guaranteed the court will determine it to be your last valid Will.
Where possible, signing your Will informally should be avoided, and you should not attempt to draft your Will.
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.