Over the last few weeks many of our estate planning clients have expressed concern about the risk of being exposed to COVID-19 if they have to leave their houses to sign their wills.
Section 10 of the Succession Act 1981 (“the Act”) requires a will to be executed in writing and signed by the testator (“the will-maker”) and the will-maker’s signature must be made or acknowledged in the presence of two or more witnesses who are present at the same time. This means that at least three people would need to be present at the time the will is signed.
The Queensland courts have adapted promptly to deal with the issues arising from COVID-19 and have recently issued Supreme Court Practice Direction No. 10 of 2020 titled “INFORMAL WILLS/COVID-19.” This Practice Direction is only to apply to documents that are signed between 1 March 2020 and 30 September 2020.
The Practice Direction is significant in that it empowers the Registrar of the Supreme Court to sit as the Supreme Court and decide applications to dispense with the requirement for witnesses to be in the physical presence of a will-maker when the will is signed.
Section 18 of the Act already provided judges with the power to dispense with execution requirements for a will, alteration or revocation of a will, provided sufficient evidence is presented to the court. But there is no guarantee that an application to dispense with the signing or witnessing requirements under section 18 of the Act will be successful. Section 18 applications are also costly compared to obtaining probate for a properly signed will.
Under the new Practice Direction, the Registrar may dispense with the signing requirements under Section 10 of the Act if evidence is produced to the satisfaction of the Registrar that:
- The will was prepared by a solicitor, or a solicitor is one of the witnesses to the will, or a solicitor is the person supervising the signing of the will.
- The will-maker intended the document to take immediate effect as their will, alteration to their will or full or partial revocation of their will.
- The will-maker signed the document:
- In the presence of two witnesses who were in the presence of the will-maker by way of video conference but not physically, or
- In the presence of one witness who was in the presence of the will-maker by way of video conference but not physically.
- The witness or witnesses were able to identify the document that was signed by the will-maker.
- The reason why the will-maker was unable to sign the will in the physical presence of two witnesses was because of either government-enforced or recommended, or self-imposed isolation or quarantine arising from the COVID-19 pandemic.
So under the Practice Direction, steps can currently be taken to correctly sign your will while not in the physical presence of the two witnesses by the use of video conferencing.
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.
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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.