Parliaments around Australia are passing new legislation to help the wheels of commerce turn during these difficult coronavirus times.

Succession law has also had considerable difficulties in dealing with the quarantine and isolation restrictions when signing and witnessing wills and powers of attorney.

A will needs 2 independent witnesses and a power of attorney must be signed with a solicitor, Justice of the Peace or Commissioner for Declarations as the authorised witness. It can be difficult for clients to get to a solicitor’s office or find a solicitor who is open and available for interviews, and there are many vulnerable people who have been told to self-isolate at home with no outside contact.

As a profession, many practitioners were concerned that some people who needed wills were simply not getting them.

We welcome the steps taken by the Supreme Court of Queensland and the Queensland Parliament to assist.

Practice direction No 10 of 2020

This practice direction issued by the Supreme Court allows the Probate Registrar to admit a will to probate even if it has not been witnessed by 2 independent witnesses in accordance with s.10 of the Succession Act 1981 (Qld) provided that the Registrar is satisfied:

  • the will was prepared by a solicitor or a solicitor is one of the witnesses to the will;
  • the will-maker signed their will with one or 2 witnesses present by videoconference; and
  • the witnesses were able to identify the document executed.

See the practice direction for further details.

This is a sensible approach to a difficult issue of balancing the need for certainty that a particular document is in fact the last testamentary wishes of the deceased against the practical difficulties of executing documents while in isolation.

This will not assist DIY will-makers because there is a requirement that a solicitor be part of the process – either as a witness or as the will-drafter.  This does not mean that DIY wills cannot be admitted to probate under these conditions.  It just means the Registrar cannot do that by herself or himself and instead the DIY will which does not meet the requirements of s.10 of the Succession Act must still proceed to a hearing with a Supreme Court Judge in the usual manner.

Implications for how you sign your will

At Paxton-Hall Lawyers we are able to use videoconferencing, including Microsoft Teams or Zoom or other software or facilities to assist you to sign your will in accordance with the practice direction.

COVID-19 Emergency Response Bill 2020

This Bill provides power to the government to arrange for regulations to be passed in relation to signing documents, witnessing documents, certifying the identification of documents and a range of other matters by technology e.g. videoconferencing or another way that is practical in the time of coronavirus.   We expect that regulations will now be issued on a range of areas of law, making things more practical.

The Registrar of Titles has already issued alternative witnessing guidelines pursuant to the power that the Registrar holds under the Land Title Act 1994.

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