A key issue with preparing Wills during the current COVID-19 situation is the difficulty in meeting the usual signing and witnessing requirements.
A validly executed Will requires two witnesses (who are not relatives or beneficiaries) to be physically present when the willmaker signs and to then sign the same document – on every page.
Obviously with social distancing and many people in self isolation this has made Will making difficult and required an approach that would traditionally have resulted in an invalid Will.
Thankfully the Queensland Supreme Court has issued a Practice Direction that goes some way to addressing the issue.
While the usual requirements are unchanged in legislation, the Registrar of the Supreme Court has been granted powers to hear an application for a Will to be considered validly executed even though it may have been witnessed via a video conference. There are further conditions to the exercise of power by the Registrar including that a solicitor either drafted the Will or is one of the witnesses.
This exemption will only apply between 1 March 2020 and 30 September 2020 where there is clear evidence that the testator intended the document to take immediate effect and that the reason the physical presence of witnesses was not possible was due to isolation or quarantine arising from the COVID-19 pandemic.
While this solution is not, in our opinion, as solid as a legislative change it is encouraging to see the passing of the COVID-19 Emergency Response Bill 2020 by parliament yesterday and hope that this will lead to further legislative changes that will offer some certainty for both our clients making their Wills and for us in advising our clients to ensure their testamentary wishes are achieved.
We have been adopting an approach which mirrors this practice direction since the social distancing protocols commenced so we are well placed to assist any clients who may wish to make new Wills but may not be able to have two physically present witnesses available.
Please contact our Wills, Estates, Planning + Structuring team for more information or to address any questions you may have.
