With the current pandemic and its effects around the world, people have been prompted to prepare or update their Wills and Enduring Powers of Attorney or more generally organise their affairs or estate planning. However, due to the self-isolation and quarantine regulations, ensuring a Will is valid and satisfies the Succession Act 1981 (Qld) may be a challenge.
For a Will to be valid in Queensland, it must be signed by the Testator (Will Maker) in the presence of two independent witnesses who both must be physically present at the time of execution of the Will. However during these unprecedented times, obtaining two independent witnesses in the same room may prove problematic.
If the Will is not witnessed concurrently by two independent witnesses, the Will may be deemed invalid which may result in the Will being challenged and the Estate not be dealt with in accordance with the Testator’s wishes.
In order to ensure the Will is witnessed correctly during these unprecedent times, SLF Lawyers, who are currently following the government health guidance, has certain systems in place.
As personal attendance to the witnessing of the Will is our prefered course, SLF Lawyers can organise the execution of the Will to take place either in our office or another location suitable to the client (as long as social distancing is in place). Alternatively, SLF Lawyers can send the Will to the client along with detailed instructions on how to formally sign the Will. In addition, SLF Lawyers will schedule a telephone or video conference call to ensure the client has received the Will, reviewed the content in detail and understands the document and the signing procedure.
If the above cannot be satisfied by the client, the Registrar of the Supreme Court may, subject to the production of evidence to the satisfaction of the Registrar, dispense the requirements under the Succession Act 1981 (Qld) concerning the physical attendance of witnessing the execution of the Will. A list of the satisfactory evidence to be provided are as follows:
1. that the Will was drafted by a Solicitor, or a Solicitor is one of the witnesses to the Will, or the person supervising the execution of the Will;
2. that the deceased intended the document to take immediate effect as their Will, alteration to their Will, or full or partial revocation of their Will;
3. that the Testator executed the document:
a. in the presence of two witnesses being in the presence of the Testator by way of video conference but not physically; or
b. in the presence of one witness being in the presence of the Testator by way of video conference but not physically;
4. that the witness or witnesses were able to identify the document executed; and
5. that the reason why the Testator was unable to execute the Will in the physical presence of two witnesses was because of either government enforced or recommended, or self-imposed, isolation or quarantine arising from the COVID 19 pandemic.”
The above only applies to wills signed between 1 March 2020 and 30 September 2020. If evidence of the above can be satisfied, the Will may be witnessed by video conference call.
Unfortunately, a Will cannot be electronically signed as it is specifically excluded from the operation of the Electronic Transaction Act 2001 (Qld).
If you require any assistance with the preparation or updating of your Will during the Covid-19 period, please contract Stephanie Tran on (07) 3839 8011.