Due to coronavirus (COVID-19) there has been an increase in the number of wills being drafted or amended, particularly from those aged over 65 years old who are more vulnerable to the virus. However social distancing and self-isolation rules are causing issues for the valid creation of wills, powers of attorney, and the appointment of enduring guardians.
This article outlines the requirements for the creation of valid estate planning documents in NSW and the consequences of an informal will.
Section 6 of the NSW Succession Act (‘the Act’) provides that a will is valid if the will is:
(a) in writing and signed by the testator (or by some other person in the presence of and at the direction of the testator), and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
The testator must sign the will with the intention of executing the will and the witnesses should be over 18 years of age and should not be the same person as the Executor(s), or any named or potential beneficiaries named in the will. A will that satisfies all these requirements is referred to as a Formal Will.
In the time of COVID-19 the requirement for two witnesses to be present at the same time for a will to be valid is problematic, especially if the testator is self-isolating and so is unable to ask independent witnesses into the room to witness the signing.
The NSW Government passed the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 on 24 March 2020 with broad powers to allow for documents to be executed in a manner that is outside these current rules and regulations. However, at the time of writing, the signing of a document by videoconference, electronically, or through an online or cloud-based document signing service do not meet the requirements for execution and in attesting a document as a witness. The Law Society of NSW is working with the NSW Government to enact regulations to assist in the execution of documents as soon as possible.
Until the regulations are enacted, should clients need to update their will but are unable to have two independent witnesses attend the execution of their will, then we recommend that the signature of the testator is witnessed by one independent witness. If no independent witnesses are available then we recommend that clients should still sign and date their will and that the signing is video recorded, such as on a mobile phone, and be accompanied by a verbal explanation or signed statement of why no witnesses could be found and that the document is intended to immediately operate as their last will. The recording or statement should accompany their will, and either be sent to someone (such as their lawyer) to ensure that it can be found, or a note should be left to confirm the existence of the recording or statement. However, while a Court may consider additional evidence as to your intention the Court may find this will invalid.
We strongly recommend that clients do NOT rely on anything other than a written will prepared by a legal practitioner. A will that results from not being executed in accordance with the prescribed legislation is referred to as an Informal Will.
Section 8 of the NSW Succession Act provides that the Court may dispense with the specific requirements of a Formal Will under section 6 of the Act when:
(a) there is a document, or part of a document, that purports to contain the wishes of how the deceased person wanted to distribute their assets but has not been signed in accordance with the Act; and
(b) the Court is satisfied that the person intended that the document form his or her will, and that
(c) the Court may have regard to any evidence relating to the way the document or part was executed and the intentions of the deceased person regarding the distribution of their assets.
An informal will may be accepted by the Court for the purposes of Probate, however informal wills are more likely to face increased costs in administration due to the risk of competing applications to the Court by others who may try to establish an earlier will or other documents as the intentions of the deceased. An informal will may also be found invalid by the Court.
A formal will prepared by a legal practitioner that is properly signed and witnessed by two independent witnesses should be put in place immediately when circumstances allow.
An Enduring Power of Attorney operates during your lifetime and empowers your chosen representative (‘Attorney’) to make financial and legal decisions on your behalf. An Enduring Power of Attorney needs to be signed by the client as the principal and witnessed by one (1) prescribed witness. The attorney(s) are not required to have their signature(s) witnessed.
A prescribed witness is a registrar of the Local Court, or an Australian legal practitioner, or a conveyancer, or an employee of the NSW Trustee and Guardian, who has successfully completed a prescribed course of study; or, a foreign legal practitioner.
An Appointment of Enduring Guardian operates during your lifetime and empowers your chosen representative (‘Guardian’) to help you make lifestyle, health and welfare decisions for you, such as deciding where you live or what medical treatment you should receive if you are partially or wholly unable to make these decisions for yourself.
An Appointment of Enduring Guardian document needs to be signed by the client as the principal and witnessed by one (1) prescribed witness. The Guardian(s) are required to have their signature(s) witnessed by a prescribed witness. A prescribed witness for an Appointment of Enduring Guardian holds the same meaning as it does for an Enduring Power of Attorney above.
We recommend that an Enduring Power of Attorney and Appointment of Enduring Guardian accompany your formal Will to ensure that your intentions can be reflected should you become incapacitated.
We hope you find this information helpful but please do not hesitate contact any of our Estate Planning experts:
Tara Lucke firstname.lastname@example.org
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
In our COVID-19 NEXUS Alerts #2 and #3, we looked at the Commonwealth and NSW legislative measures which had been introduced to mitigate the impact of COVID-19 pandemic on certain commercial and retail leases – with detail being proposed to follow via specific state and territory regulations being adopted. NSW has now enacted its regulations.