Legislative changes to how Wills and Enduring Powers of Attorney are witnessed

On 22 April the NSW government brought in regulations to allow Wills, enduring powers of attorney and enduring guardianship appointments to be witnessed via ‘audio visual link’.  NSW is the first State to pass laws in relation to virtual witnessing of these documents.

The regulations allow a person to sign those documents alone in their home, provided that the appropriate witnesses are viewing the signing over Zoom, Skype or other visual medium.

Social distancing and government regulations restricting our movement have caused a real problem for people wanting to create or change their estate planning.  This is because a number of testamentary documents require two witnesses (such as Wills and binding death benefit nominations) or require a qualified witness, such as Enduring Powers of Attorney (and in NSW, Enduring Guardians).

The law places these additional strict requirements surrounding the signing and witnessing of such documents (compared to a commercial contract for example) because at the time that the document is activated and relied upon, the creator of the document has passed away or has lost capacity.  They are therefore no longer able to explain, refute or confirm its contents.  The document has to be able to withstand any assertion that it does not reflect the maker’s wishes or that the proper processes were not followed (which may indicate for example that the maker of the document did not understand the contents, or was coerced).

The virtual witnessing process prescribed by the NSW regulations is not as simple as it first appears – there has to be some precautions to ensure that the document being witnessed contains the same content as the one that the Willmaker/Principal signed.  Not easy to do over the Internet.  A witness can sign a copy of the document, or the original.  If there are two witnesses, in different locations, this could get difficult to supervise.  There also has to be a prescribed attestation clause included by each witness, and I would say, a very detailed file note of what you as a witness observed.

In Queensland, legislation was passed on the same day to empower regulations to be formulated that can modify the current formalities of Wills and enduring powers of attorney signed in Queensland.  In this regard Queensland is a few weeks behind New South Wales.  It will be interesting to see whether Queensland prescribes a different process for the witnessing of these documents.

Legislation in Victoria is also expected shortly.  Interestingly, binding death benefit nominations were not mentioned in the NSW legislation, given that they are a creature of Commonwealth statute.

Despite these changes, which the legislation make clear are only temporary measures, it is still best practice in my opinion for our estate planning process to comply with the formal signing and witnessing requirements.  The virtual witnessing option should not be seen as a convenient option, and is best used only for genuinely urgent cases, where the formal options are not readily available.  It is easy to get a step in the virtual process wrong, and the validity of the document could be jeopardised accordingly.

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