How to sign Wills and Powers of Attorney during the COVID lockdown
The COVID-19 pandemic has created witnessing and logistical challenges for signing of Wills and Powers of Attorney. In response to this, the Victorian Government introduced regulations to provide temporary emergency measures to allow Wills and Powers of Attorney to be signed electronically and witnessed remotely.
The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) (“the Regulations”) were introduced on 12 May 2020. The Government recently announced that the emergency regulations would be extended until 26 April 2021.
What are the pre-pandemic rules for signing Wills and Powers of Attorney?
In Victoria, there are strict requirements for witnessing of Wills and Power of Attorney.
Both Wills and Enduring Powers of Attorney must be signed by the person making the document in the presence of two adult witnesses. In the case of an Enduring Power of Attorney, one of the two witnesses needs to be an authorised witness such as a lawyer or medical practitioner.
What do the temporary regulations permit when signing Wills and Powers of Attorney?
The Regulations assist in addressing the document signing and witnessing challenges that have arisen as a result of the pandemic. Specifically, problems have arisen where important documents, which includes Wills and Powers of Attorney, need to be signed in the physical presence of witnesses.
The Regulations allow remote witnessing of certain documents and electronic signatures.
The execution of a Will, codicil or other ‘testamentary writing’ by a Will maker in the presence of a person, for the purposes of the Wills Act 1997 (Vic), may now occur where parties are present by audio-visual link. The Regulations set out the conditions and requirements for executing your documents using an audio-visual link.
Enduring and non-enduring Powers of Attorney and supportive attorney appointments can also be signed and witnessed by audio-visual link for the purposes of the Powers of Attorney Act 2014 (Vic). Again, there are conditions and requirements set out in the Regulations.
What conditions must be met when signing your documents
1. The witnesses must observe the principal (the Will-maker or the person making the Power of Attorney) sign the document either electronically or on hard copy (and the signature of any witnesses physically present).
2. A copy of the document must then be transmitted, for example by email or fax, to the first remote witness. The remote witness must:
- sign either electronically or on a printed hard copy;
- write a statement that the document was witnessed via audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020; and
- transmit a copy (for example by email or fax) to the next remote witness (if any), who repeats these steps.
3. A copy of the document signed by all witnesses must be returned to the principal. The principal must write on that copy a statement that:
- the copy is a true copy of the document signed by the person; and
- the conditions in the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been met.
4. The principal must sign and date that statement.
The result is that there is one copy of the Will and/or Power of Attorney on which all the signatures and statements appear. This copy is the final Will. In the case of the Power of Attorney, the attorneys must still sign the document for their appointments to be valid.
The above steps must all occur on the same day.
What audio-visual options can I use to execute my documents?
The Regulations define an audio-visual link as “facilities (including closed-circuit television) that enable audio and visual communication between persons at different places”.
The Regulations do not specify a particular platform that needs to be used. Commonly used platforms such as Zoom, Microsoft Teams, Facetime, WhatsApp, Skype or Webex, which allow real-time video conferencing, will suffice.
In many instances, the signing and witnessing of important documents by conventional means may be preferable, where possible. However, for high-risk individuals, people who wish to continue self-isolating or people who are limited in their movement, the
Regulations offer contact-free signing and witnessing of important estate planning documents during the pandemic.
Can I use remote witnessing for an Appointment of Medical Treatment Decision Maker?
The Regulations do not allow for Appointments of Medical Treatment Decision Makers to be witnessed remotely. These will need to be witnessed and signed the traditional way.
How a Wills and estates lawyer can help
At Smith Family Law, we continue to offer Wills and Power of Attorney services to existing and new clients, whether that be in-person (when no restrictions are in place) or remotely.
Contacting Smith Family Law
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Smith Family Law.
