With social distancing restrictions from COVID-19 impacting almost every aspect of our daily lives we’ve been asking how estate planning can be validly completed and whether it’s possible to sign a Will electronically?
Christina Wolfsbauer from Intello Legal outlines how you can still complete or update your SMSF estate planning during the COVID-19 restrictions.
Can you sign a Will electronically?
The restrictions have sparked questions on how estate planning can now be validly completed. The QLD Law Society has confirmed that you cannot sign a Will electronically and that it’s not possible for Enduring Powers of Attorney and Wills to be witnessed electronically either, including via video conferencing.
It is possible however that witnessing can occur through a glass window, for example or from a separate room provided the witness can still clearly see the Will-maker. As with most businesses right now, estate planning lawyers have adjusted in how we deliver our services.
Wills and estates remains an area of law that cannot be provided completely electronically, so what then are your options to complete your estate planning while still complying with social distancing rules?
Attend Solicitor’s office while adhering to social distancing requirements
An Enduring Power of Attorney and/or Will can be signed in a Solicitor’s office if the Solicitor is able to provide an environment that complies with hygiene and social distancing requirements.
Our Southport office can provide this via our meeting rooms that have glass panels and doors.
Have your Will witnessed by visitors to your home
The current restrictions allow two visitors to your home who are not ordinarily members of your household. Your Will must be signed in the presence of two witnesses who are independent of you (i.e. not named in your Will nor family members, spouses or potential beneficiaries of your estate).
Visiting friends or neighbours could fall into this category. Intello Legal provides clear signing instructions and can ‘attend’ the signing via a video call to provide guidance in real-time. Please note a Power of Attorney cannot be signed in this manner unless the visitor is also a JP, Solicitor, Commissioner of Declarations or a Notary Public.
If you choose this option you should be aware that the witnesses do not need to know the content of your Will and you would not be obliged to answer any questions pertaining to your Will. Rather, they simply need to know that it is a Will that they are witnessing. By including Intello Legal in your signing meeting via a video conference we can manage the conversations in this regard.
Create an “Informal Will”
If you find yourself in circumstances where it is not possible for you to have your Will witnessed appropriately then it may be appropriate to create an informal Will.
Creating an informal Will means you sign your Will without meeting the witness requirements. In this circumstance if you pass away a Court order would be required to have your informal Will accepted as valid. This can be expensive and there is no guarantee that the Court would accept the Will.
If you choose to create an informal Will there are certain things you should do to improve the likelihood of it being accepted by the Court. For example, a written statement from you as to why you cannot sign in the presence of two witnesses, videoing yourself signing, signing via video call with your Solicitor and taking photos of your signed Will before sending the original to your Solicitor.
It is important to remember that an informal Will can create an expensive and uncertain outcome for your estate and this approach should be used as a last resort and only as an interim measure.
Steps to take
Whilst we certainly recommend that everyone reviews their estate planning arrangements in these uncertain times, the actions you then take must be aligned to your specific circumstances. If you consider that you will be able to meet the witnessing requirements then we recommend that you create or update your estate planning in a comprehensive manner. If you consider it unlikely that you could meet the witnessing requirements, whether you should proceed with an informal Will, informal Codicil or leave your estate planning (or lack thereof) as is will depend on what you currently have in place and on your individual circumstances.
We welcome you to contact us if you wish to discuss your specific circumstances in a no-obligation telephone call. We are here to help.
Christina Wolfsbauer can be contacted on 07 5655 2093 and via email email@example.com
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Other questions relating to can I sign a Will electronically?
The following are other questions we may be able to answer:
- Can my Will be witnessed electronically?
- Can an Enduring Power of Attorney be signed electronically?
- Can a binding death benefit nomination form be signed electronically?
- Can I witness a document via video conference?
- What states allow electronic Wills?
- What are the Australian laws around electronic signatures?