The impacts of COVID-19 have already been felt by many of our clients and several of them have asked us how to update or make new wills, without having to meet a solicitor face-to-face.
If you are concerned that your existing estate planning arrangements are no longer appropriate or if you do not currently have a will in place, there are steps you can take to ensure that your testamentary intentions are recorded. There are also ways to put suitable documents and structures in place even if you are in isolation.
Making A Will: Virtual Instructions
We are continuing to assist our clients with the preparation of their estate planning documents. We are very mindful of new policies regarding social distancing and encourage clients at first instance to contact us by phone so we can assess if we are able to take instructions by Skype. The ability to take instructions via skype will be assessed on a case-by-case basis. Drafts of your documents can then be prepared and posted or emailed to you and then ultimately a meeting will be convened to have all of the documents signed.
If a Skype appointment is not suitable, we can arrange a face-to-face meeting with you to take your will instructions, while observing the COVID-19 restrictions.
Finalise The Documents: In Person
Wills are required to be signed by the will-maker in the presence of two adult witnesses. We can still ensure the necessary requirements are met by having the two witnesses stand the required distance from the will-maker and each other, but still within the sight and presence of each other. Each witness can then witness the will in the same manner.
When we meet with you face-to-face to finalise the documents, we can confirm your instructions and understanding of the documents. This will be done under the appropriate conditions conducted in a way that appropriately safeguards our employees and your safety.
We will call you prior to any scheduled appointments to check you are feeling well. We have increased our regular cleaning schedule and hygiene practices in each of our offices and we ask that you kindly use hand sanitiser provided at our reception desk as you enter our office.
We are able to assist clients to facilitate will signing from home. We can send your will to you by post or email, with thorough signing instructions, to ensure they are validly executed. We understand that without guidance from a lawyer at the signing, confusion as to the requirements may arise. We are available by telephone if you have any questions when you are signing your will at home.
What Happens If You Are Unable To Locate 2 Independent Witnesses?
To be valid, a will should be in writing and signed by the will-maker in the presence of two independent witnesses.
The witnesses should be over 18 years of age and should not be named or be a potential beneficiary contemplated by the will.
The will-maker should sign the document first, followed by the two witnesses.
The will must be dated.
In light of the COVID-19 situation, it may not be possible or practical to have two independent witnesses present to witness your will.
A will that is not signed in accordance with the prescribed legislation is commonly referred to as “an informal will.” The Supreme Court may admit an informal will to probate provided that:
- It is “a document,”
- The document sets out the author’s wishes or intentions for what he/she wants to happen in the event of his/her demise, and
- The Supreme Court is satisfied that the will-maker intended the document to operate as his/her will.
In these circumstances, an application for probate of an informal will is required to be heard by a judge.
However, there is a new practice direction regarding informal wills and the COVID-19 Pandemic.
New Practice Direction Re Informal Wills & COVID-19
A new Practice Direction has been issued by the Chief Justice of the Supreme Court in relation to informal wills executed during the COVID-19 situation.
The new Practice Direction expands and simplifies the circumstances in which an informal will can be admitted to probate. The requirements are:
- The will was prepared by a solicitor (or witnessed or supervised by a solicitor).
- The will-maker intended the document to take immediate effect as their will.
- The will was witnessed by 1 or 2 witnesses via video conference.
- The witness/es are able to identify the document that was signed by the will-maker.
- The will was made between 1 March 2020 and 30 September 2020.
- The reason why the will-maker was unable to sign the document in the physical presence of two witnesses was isolation or quarantine due to the COVID-19 pandemic.
In those circumstances, the Probate Registrar (rather than a judge) may admit the will to probate. That is a much more simple, and much less costly, process than applying to a judge.
Of course, the best practice is still to have the will witnessed by 2 witnesses who are physically in the presence of the will-maker.
How We Can Help
Quinn & Scattini Lawyers have been taking instructions for wills by way of Skype for several years. Now Skype (among other methods) can be used to help a will-maker comply with the requirements for signing their wills in accordance with the Supreme Court Practice Direction, for wills being signed between 1 March 2020 and 30 September 2020.
We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.
This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.