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Where are Wills going in Covid-19?

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The law has always been a very strict taskmaster in prescribing how people should do their Wills. Technically, it requires you to be able to read it, comprehend it and sign it in the presence of two witnesses.

Of course, that assumes everyone is able do that. Some people, for various reasons, may have limitations when it comes to complying with the law’s requirements.

Some of those limitations may include:

  • Impaired sight
  • Impaired speech
  • Impaired hearing
  • Impaired signing
  • Impaired capacity
  • Unable to read English
  • English as a second language
  • A combination of more than one of the above

Fortunately, the law is also very responsive and adaptive to accommodating these factors in order to enable a person to make a Will. So, for example, if someone can’t read their Will, it can be read to them. If someone can’t sign a Will they can either just leave their ‘mark’ on it, or someone else can sign it on their behalf.

Enter stage left to throw up another challenge to the law – Covid 19.

It has created some real practical difficulties for people to comply with the legal requirements to make a valid Will. Distancing and isolation are the main problems, given that the law requires the person signing a Will to do so ‘in the presence’ of two other people. ‘Presence’ usually means in the physical presence of the people who must be able to witness the willmaker’s signature and each other’s signature.

Fortunately, the law continues to be responsive to this novel problem. NSW and Victoria have recently passed laws allowing electronic witnessing of Wills. This means you don’t actually have to be in the physical presence of the willmaker but can do it e.g., by skype or zoom.

The Queensland Parliament is yet to pass any such specific legislation. However, the Supreme Court has taken an initiative. It has declared that it will, where certain conditions are met, accept a Will that has not been formally and correctly executed (known as an informal Will). Those conditions are:

  1. The willmaker’s signing of their Will is witnessed by a lawyer using an audio visual link (e.g., Zoom);
  2. There is evidence the willmaker intended it to be their Will
  3. Government mandatory or recommended actions such as isolation or quarantining prevented the necessary two witnesses being physically present.

However, this change has a time limit – it will only apply, currently, from 1 March 2020 until 30 September 2020.

For anyone unable to be ‘present’ with witnesses, this could be an opportunity to get your Will done, virtually, and to do it successfully.

While we are still seeing clients in person, with appropriate distancing procedures, as always, we lawyers are happy to help in any other way we can. Don’t be tempted to use covid as an excuse to put it off.

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