Peter Allsopp, Legal WriterLexisNexis Australia
Remote witnessing of Wills
Ordinarily, a Will must be signed in the physical presence of at least two witnesses who must then sign the same copy of the document in the presence of the testator and each other. However, social distancing restrictions brought in as a result of the COVID-19 pandemic have made these requirements impracticable in many cases.
Some states and territories have passed temporary regulations to permit the remote witnessing of Wills and other documents during the pandemic. Importantly, these regulations do not change a legal practitioner’s fundamental obligation when witnessing a Will to assess the testamentary capacity of the testator, which may be more difficult when remotely witnessing a signature.
New South Wales
The New South Wales Government has enacted the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 allowing a person to witness a document by audio-visual link.
For a Will, the witness must:
- observe the testator signing the document in real time;
- confirm the signature by signing a copy of the document (scanned and sent electronically by the testator), or signing a counterpart of the signed document;
- be “reasonably satisfied” that the document they sign is the same document that the testator signed; and
- endorse the document with a statement specifying how the document was witnessed, and that the document was witnessed in accordance with the Regulation. For example:
“I [name] attest that this document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”
The Regulation expires on 23 October 2020.
On 12 May 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 came into force in Victoria, allowing for the electronic signature and remote witnessing of various types of documents, including Wills.
The Regulations modify the process for witnessing and executing a Will under the Wills Act 1997. Witnesses may now observe a testator sign a Will electronically or on hard copy over audio-visual link. The testator then transmits a copy of the Will to the first witness to sign electronically or on hard copy, after which the first witness transmits a copy to the next witness who repeats these steps. Finally, a copy of the signed Will is returned to the testator. The testator and each of the witnesses must provide a statement confirming that the Will was witnessed and executed in accordance with the Regulations. For example:
“I, [name] attest that this document was signed in counterpart and witnessed by me by audio visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”
For the Will to be valid, all the above steps must occur on the same day.
The Regulations will remain in effect until 25 October 2020.
On 14 May 2020, the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 under the COVID-19 Emergency Response Act 2020, was made by the Queensland Governor in Council enabling documents to be witnessed via audio-visual link, provided one of the witnesses is a ‘special witness’.
A ‘special witness’ includes a legal practitioner, a justice of the peace, a commissioner for declarations and a notary public.
Once the document has been signed and witnessed, the special witness must sign a certificate addressing the matters set out in reg 21(2), and the certificate must be kept with the signed document.
The Regulations apply to documents signed between 15 May 2020 and 31 December 2020.
On 22 April 2020, the Supreme Court of Queensland also published Practice Direction Number 10 of 2020, providing a Registrar of the Court with power to dispense with the rule under the Succession Act 1981 (QLD) that the witness to a valid Will must be physically in the presence of a testator when they sign their Will.
To dispense with that requirement, the Registrar must be satisfied that:
- the will was drafted by a solicitor, or a solicitor is one of the witnesses or the person supervising the execution of the will;
- the deceased intended the document to take immediate effect as their Will (or as an alteration or revocation of their Will);
- the testator executed the document:
- in the presence of two witnesses being in the presence of the testator by way of video conference but not physically; or
- in the presence of one witness being in the presence of the testator by way of video conference but not physically;
- the witness(es) were able to identify the document executed; and
- the reasons for the testator being unable to execute the will in the physical presence of two witnesses in the usual way was due to COVID-19.
The Practice Direction applies to Wills executed between 1 March 2020 and 30 September 2020.
Other States and Territories
In South Australia, the COVID-19 Emergency Response (Section 17) Regulations 2020 maintain the requirement that a person witnessing the signing, execution, certification or stamping of a document must be psychically present. Therefore, it is not possible to remotely witness a Will via audio visual link.
In Tasmania, the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (No.2) does not provide for the remote witnessing of documents as in New South Wales, Victoria and Queensland.
Western Australia, the Australian Capital Territory and the Northern Territory have not passed measures allowing for the remote witnessing of documents including Wills.