Last Friday (15 May, 2020) the Qld Government passed legislation to allow the Wills and enduring documents (more particularly enduring powers of attorney and advance health directives) to be signed and witnessed in a virtual environment in addition to the traditional method of signing these documents in the physical presence of the required number of witnesses. We explore below how this practically can be done.

How can Wills now be signed in Qld?

The willmaker still signs the Will document in the traditional way.  A digital signature is not allowed.  Two witnesses are still required.  The witnesses do not however need to be physically present.  They do need to be virtually present in real time and they must be able to view the willmaker signing the will.  Each witness can also witness from an entirely separate location.

Enduring Powers of Attorney (EPoA) and Advance Health Directives (AHD)

The Regulations still require the Principal (ie the person making the EPoA or AHD) to sign the document in the traditional way.  The qualified witness (lawyer, JP or Comm Dec) is still a requirement, however they do not need to be physically present.  They must have virtually witnessed the Principal signing the document from their separate location in real time.  For Advance Health Directives, a nurse practitioner can certify in substitution for a medical practitioner. 

The legal procedure involved

Whilst this sounds like a real breakthrough, the prescriptions that the Regulations place on the virtual witnessing procedure are quite onerous.  For a start, one of witnesses to the Will must be a ‘special witness’ (namely a lawyer, JP or Comm Dec).  The special witness (whether for a Will or an enduring document) must also complete a certificate to state that the list of the Regulation’s requirements were met.  Further, the witnesses each need to sign the original or copy of the Will at some point and everyone has to sign every page of the document. 

Where to from here?

The strict procedural requirements are not a convenience measure, and are likely to add to the cost of the process and increase the chance of error.  Nevertheless, the Regulations are valuable in being able to effect legally valid wills and enduring documents in situations where physical witnessing is impossible.  If you cannot have your documents witnessed physically, then seek the advice of an estate planning lawyer to arrange the correct virtual witnessing under the new legislation.

The legislation is in effect until 31 December, 2020.