Justice Legislation (COVID-19 Emergency Response – Wills & Enduring Documents) – Regulation 2020 (Regulation)
The Queensland Government has today published the Regulation setting out how wills and enduring powers of attorney (EPOAs) may be witnessed by video link.
The Regulation may be accessed here: https://www.legislation.qld.gov.au/view/whole/html/asmade/sl-2020-0072
The Regulation acts to deem that a witness who attends a document signing by audio-visual link is taken to be present where the document was signed for the purposes of the Succession Acct 1981 and the Enduring Powers of Attorney Act 1998.
At least one of the witnesses must be a special witness, which is defined in the regulation to be an Australian legal practitioner, Justice of the Peace (JP) or Commissioner for Declarations (C.Dec), notary public and limited other persons.
Note that the JP or C.Dec must be approved by the Chief Executive of the Department or be employed in the law practice that prepared the will or power of attorney. This means that a JP or C.Dec, who does not work in a law firm, will not be able to be a witness over audio-visual link under the Regulation unless they are individually approved.
The witnesses must:
· observe the testator signing the document in real time; and
· be satisfied that the signatory is freely and voluntarily signing the document; and
· be satisfied that the audio-visual link is appropriately capable to send the live audio and visual feed to meet the requirements of live witnessing.
Each witness must take reasonable steps to verify the identity of the signatory and that the name of the signatory matches the name written on the document.
After the document is witnessed, the witness must give the original document or a copy of it, to the person who made the document i.e. the will-maker or the principal under the power of attorney.