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.

Witness certificate

The Regulation sets out a detailed certificate which must be completed and signed by the witness.

Substitute signatory

The Regulation introduces the innovative concept of a person signing on behalf of the testator/principal.  That person must be either an Australian legal practitioner or an employee of the Public Trustee and must not be an executor, a beneficiary under the will or a relation of either of those persons or the attorney for the principal or a relation of the attorney.

In practice, what this allows is that a house-bound client could contact their lawyer by phone to provide the instructions for the will or other document and then, at time of signing the document, it could be done by audio-visual link.  The client could direct their solicitor to sign on their behalf, then the witnesses would be present with the solicitor when it was signed.

Commonwealth requirements

This Regulation will not affect requirements for witnesses under any Commonwealth Act.  For example, it will not be possible to sign a superannuation binding death benefit nomination by audio-visual link under this Regulation.

Deeds and other documents

Unfortunately, the Regulation expressly refers to wills and powers of attorney or documents that alter either of those 2 documents.  Therefore, it is not clear that trust deeds, deeds of family arrangement or other documents can be signed by audio-visual link pursuant to this Regulation.  However, this may become clearer in time.

Practical application

Whilst we welcome the Regulation and new ability for practitioners to assist their clients to witness EPOAs and wills by video link, we recommend that, wherever possible, the traditional witnessing methods are employed.  This of course is subject to social distancing rules and appropriate safety precautions taken by vulnerable persons.

The reason we are cautious is that there are substantially more technical elements to witnessing the will or EPOA under the Regulation compared to witnessing the will under s.10 of the Succession Act with which we are all familiar.  For example, Inevitably there is a higher chance of non-compliance when signing under the Regulation.

Not for DIY wills or EPOAs

The requirement that the special witness be a solicitor or JP or C.Dec employed in a law firm means that audio-visual link wills will necessarily involve engaging your lawyer.  This process is not for DIY wills or EPOAs.

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