The Novel Coronavirus (COVID-19) is changing the way in which people conduct their lives. The promotion of self-isolation and social distancing during this unprecedented period is encouraging businesses across the country to innovate. This includes legal practices.
One area of concern relates to the requirements of preparing, signing and witnessing your Will whilst still upholding social distancing practices. Section 8 and 12 of the Wills Act 1936 states that a valid Will is one that is:
- A written document that expresses your testamentary intentions (e.g. gifting of property to a certain person or class of persons);
- Signed by you or by another person with your direction to sign on your behalf;
- Witnessed by two or more witnesses present at the same time; and
- Signed by the witnesses in your presence but not necessarily in the presence of each other.
It is recommended that the two witnesses be “at an arm’s length” from your Will (e.g. not named in the Will). A Will should be signed by you and the two witnesses using the same pen.
We understand that both recommendations are going to be difficult to comply with given the current health situation in Australia. It is important that you seek legal advice to discuss your options if you are contemplating preparing a new Will or updating your current Will during this period.
At this stage, there are no restrictions on small face-to-face meetings for the provision of legal services. Swan Family Lawyers would be happy to meet with you to take instructions or, alternatively, we can arrange Skype or Zoom meetings to take your instructions.
The Law Society of South Australia suggested that a Will can be signed without meeting the witnessing requirements during the COVID-19 crisis provided that other requirements are met. These include videoconferencing your lawyer at the time of signing the Will, or expressing your intentions that it operate as your last Will. It is unlikely that a Will signed in this manner will meet the strict requirements under the Wills Act 1936. If a person were to pass away before they could have their Will properly executed and witnessed, your executors would be required to bring an application to have this Will declared valid. Ultimately, your best chance of having your testamentary wishes followed is to ensure that your Will is signed and witnessed by two people.
If you die without a valid Will, the laws of intestacy will apply leaving your assets to be distributed in accordance with the statutory order (Part 3A of the Administration and Probate Act 1919).
Contact our office today if you wish to prepare a new Will or update your current Will. We can accommodate meetings by telephone, Skype, Zoom or in person with social distancing measures in place.