As we can all appreciate, the Government and World Health Organisation’s advice and instruction around containing the spread of COVID-19 changes on a daily basis. At present, we are engaging in strict social distancing but preparing for the possibility of a total lock-down.
Wills
In the event that you would like to update or create a new Will, then we are capable of taking your instructions over email, over the phone or via video conferencing software, such as Skype. In limited circumstances, we will also be able to meet with you in person.
We are capable of advising on and preparing a draft Will and emailing it to you.
If you are comfortable with the draft Will prepared, then you will need to have the facility to print it out.
In New South Wales, in order for a Will to comply with formal signing requirements, you will need to sign it in the presence of two independent witnesses. If you are in self-isolation or total lockdown and cannot procure two independent witnesses, then we recommend that you continue to sign your Will either:
- In front of one independent witness; or if none
- Then just yourself.
It is important to note that in Victoria there is no need for witnesses to be independent.
We do not recommend signing it in front of two people mentioned in your Will (or related to those people by blood or marriage), as it can render their gifts void.
This will become an “informal Will” and if you pass away before signing a Will that complies with formal signing requirements, the Court has the discretion to admit an informal Will into Probate.
To assist with this discretion, we will provide you with a statement explaining why COVID-19 has prevented you from formally signing your Will.
This statement will also highlight that COVID-19 has prevented us, as your solicitors, from verifying your identity and testing your “testamentary capacity”, meaning your ability to understand what a Will does and the impact your instructions will have on the distribution of your assets. We are ethically and legally required to do this for all clients.
Enduring Powers of Attorney and Enduring Guardians in New South Wales
If you would like to update or create an Enduring Power of Attorney and Enduring Guardian, then we are capable of taking instructions remotely as above and emailing you advice and draft documents.
However, both of these documents need to be signed in the presence of a solicitor, barrister or clerk of the court. Unless you are in self-isolation or lockdown with one of these authorised witnesses, then you will be unable to sign these documents and have valid documents in place. Moreover, your appointed persons will also need to sign these documents and whilst there are no witnessing requirements for an attorney, guardians will also need to sign in front of a solicitor, barrister or clerk of the court.
Parliament are proposing to introduce emergency measures to address this problem and we are following developments as they unfold.
Alternatively, you could sign a General Power of Attorney instead of an Enduring Power of Attorney. A General Power of Attorney need only be signed in front of one independent witness. However, it will not continue if you ever lost capacity through unsoundness of mind, like an Enduring Power of Attorney would.
Failing having valid documents in place and you needed them, then the NSW Civil and Administrative Tribunal’s Guardianship Division would appoint someone as your attorney and/or guardian.
Enduring Power of Attorney & Appointment of Medical Treatment Decision Maker in Victoria
If you would like to update or create an Enduring Power of Attorney, appoint a Supportive Attorney or appoint a Medical Treatment Decision Maker, then we are capable of taking instructions remotely as above and emailing you advice and draft documents.
However, please note that an Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker must be signed in the presence of two adult witnesses, one of whom must be a person authorised to witness affidavits (a lawyer for example) or a medical practitioner.
Unless you are in self-isolation or lockdown with one of these authorised witnesses, then you will be unable to sign these documents and have valid documents in place. Moreover, your appointed persons will also need to sign these documents and have their statement of acceptance of appointment witnessed by an adult witness.
Alternatively, you could sign a General Non-Enduring Power of Attorney instead of an Enduring Power of Attorney. A General Non-Enduring Power of Attorney need only be signed as a deed, without any witnesses. However, a General Non-Enduring Power of Attorney will only cover financial matters (not personal matters) and it will not continue if you ever lost capacity through unsoundness of mind, like an Enduring Power of Attorney would.
Failing having valid documents in place and you needed them, then VCAT has the ability to appoint someone as your guardian and/or administrator.
Once the pandemic is contained:
Once the pandemic is contained and restrictions lifted, we recommend setting up an appointment with your solicitor to re-sign your documents pursuant to the above mentioned formal requirements.
For any queries about your estate planning needs or advice regarding Probate or informal Wills, please contact Ilana Kacev (Vic) or Camille Broadhurst (NSW) for further advice. They can be reached via email, phone or Skype.
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