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ALERT: COVID-19:  Guidelines for signing and witnessing Wills

Current as of 31 March 2020

With the current health situation and limitations of social distancing, how do you ensure validity of legal documents where they are required to be signed, or witnessed in the presence of others?  One area of concern relates to the requirements of preparing, signing and witnessing a Will. 

If you have provided instructions to prepare a Will but not yet had it signed, or if you are contemplating preparing a new Will or updating your current Will, but are in self-isolation or concerned to maintain social distancing guidelines – options do exist.  

VALIDITY  

In order for a Will to be valid, it needs to be signed in the presence of two adult disinterested witnesses (ie no one named in the Will) and ideally using the same pen, which means that the person making the Will needs to be in the same room at the same time as those two other adults.  Every page of the Will must be signed ensuring that on the last page the Will is also dated and the witnesses provide their full name and address. This has caused some clients to be concerned about finalising their Wills, particularly the elderly or those with pre-existing medical conditions.

With the current health situation in Australia, we are ensuring that we comply with all restrictions by keeping clients safe, while at the same time, being able to comply with processess to ensure the legal validity of documents created.  If you are concerned about finalising your Will or, or if you are contemplating preparing a new Will or updating your current Will, but are in self-isolation or concerned to maintain social distancing guidelines, we recommend that you get legal advice to discuss your options as soon as possible, as processes may be available to alleviate your concerns.  For example, you maybe able to sign your Will in front of witnesses that you are already in contact with.

At this stage, there is no restriction on small face to face meetings for the provision of legal services, which means, that on a case by case basis, you are still able to meet with practitioners for the purposes of giving instructions to sign, update or prepare new Wills.  As there are important guidelines that must be followed in order ensure a Will is valid,  we encourage you to get legal advice to ensure appropriate measures are implemented.

However, if there is a concern about attending a face to face meeting,  in most cases, details to prepare or update a Will can be taken over the phone, with draft documents sent and reviewed by email.  In many cases, videoconferencing facilities are available for those who would prefer, or where more detailed instructions and discussion are required.

Alternatively, if you are in self-isolation but would like to ensure that your wishes are recorded, the Law Society has suggested that a Will can be signed without being witnessed subject to certain requirements being met (such as the client informing a lawyer that they have signed the Will with the intention that it operate as their last Will).  However, there are some risks with proceeding in this fashion,  in that the Will is unlikely to meet the strict requirements under the Wills Act to be considered valid.  Further, in the unfortunate event that the person dies before the Will was signed and properly witnessed, the circumstances surrounding this will need to be explained, and an application will need to be made to the Court to have the signed but not witnessed Will, declared valid. This may add undue burden on what can already be an emotional time for loved ones.  If you die without a valid Will, it may be that the laws of intestacy will apply, meaning that your assets will be distributed in accordance with laws set out in South Australia.  These laws may not accord with your testamentary wishes.

While these are certainly strange and unsettling times please rest assured that we are here to assist you to ensure that any Will you prepare, or sign, is valid.  We therefore recommend that you get legal advice to discuss any concerns you may have.