COVID-19 has dramatically altered the way that estate planning lawyers conduct business
Social distancing and isolation measures have meant that meeting with clients in person to witness the signing of their documents isn't always possible.
One of the formal requirements of a valid Will is that it must be signed in the presence of two adult witnesses.
Often it is efficient if one of the witnesses is the lawyer who drafted the Will, who is also able to make a judgment about whether you as the person making the Will understand what you are doing (in the crime shows they call it ‘of sound mind’) and make sure you have not been coerced or improperly influenced.
In some unique and unusual cases, the Courts have used statutory power to dispense with the witnessing requirement and have upheld the validity of unwitnessed Wills.
These cases include a Word document saved on the deceased’s computer (Alan Yazbek v Ghosen Yazbek & Anor  NSWSC 594), an unsent text message
(Re Nichol; Nichol v Nichol & Anor  QSC 220) and even a message scratched onto the fender of a tractor.
The tractor case took place in Canada, but it is based upon similar principles to those applied in Australia. Right now, most Australian States have enacted temporary legislation to permit some legal documents, including Wills, to be witnessed via videoconference.
At Equity Trustees we have also been conducting ‘drive-by’ signing meetings, where clients can sign their documents in their front garden with the lawyer present, while maintaining a safe social distance.
Whatever your situation, work with your lawyer to find the most appropriate solution to have your estate planning documents validly executed – now in the new ‘COVID normal’, and beyond.
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