Please note that the information contained below is current as at 1 May 2020 and may be subject to change.
A validly executed Will typically requires the will-maker to sign it in the presence of two independent adult witnesses.
That is, three people physically present in the same room at the same time watch each other sign the same document.
The COVID-19 social distancing restrictions have made this process somewhat problematic, but there are indications that the various Australian jurisdictions may implement changes to allow wills to be witnessed electronically.
For example, New South Wales has recently introduced temporary regulations which allow certain documents, including Wills, to be witnessed remotely by “audio visual link” provided additional requirements are met.
The answer to the question “Can I really have my Will witnessed over Skype?” is therefore yes, but only in New South Wales and only if you follow the requirements precisely.
If you’re unsure, revert to the gold standard – same room, same time, same document. Some people are ineligible to witness Wills, so check your State or Territory laws first.
New South Wales
The New South Wales regulations are the first of their kind in Australia and have not been tested by a Court. However, it appears as though a Will can be signed and witnessed via “audio visual link” if the witness:
- observes the signatory (e.g. will-maker) signing the document in real time;
- attests or otherwise confirms the signature was witnessed by signing a document (or a copy of that document);
- is reasonably satisfied the document they signed is the same document (or a copy of the document) the signatory signed; and
- endorses the document (or copy) with a statement specifying the method used to witness the signature, and the fact that the document was witnessed in accordance with the Regulation.
The regulation provides a guidance note which suggests that including a statement in the document that “this document was signed in counterpart and witnessed by me over audio-visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017” would satisfy the last of these requirements.
Having your Will witnessed this way does involve an element of risk, because of the specific requirements. We recommend you speak with a lawyer before having your Will witnessed this way.
Victoria has recently passed the COVID-19 Omnibus (Emergency Measures) Act 2020, which allows the making of regulations relating to the witnessing, execution or signing of legal documents such as…wills.
Provided restrictions remain in place, we might expect Victoria to pass regulations similar to those passed by NSW in the near future.
For a time it appeared as those South Australia was going to implement a similar regime to that of NSW.
However, as of 20 April 2020, it is clear that the ability to conduct meetings and other transactions by audio-visual means does not apply to witnessing documents (including Wills).
Queensland has enacted similar legislation to New South Wales and Victoria. Like Victoria, it has not yet brought in specific regulations for witnessing Wills. To date no such regulations have been implemented.
However, the Queensland Supreme Court has also issued a Practice Direction which allows a Registrar to dispense with the usual witnessing requirements in certain circumstances.
This doesn’t necessarily permit wills to be witnessed electronically, but it would allow a will to be recognised if the Registrar is satisfied that
- the will was drafted by a solicitor, or a solicitor is one of the witnesses to the will, or the person supervising the execution of the will;
- the deceased intended the document to take immediate effect as their will, alteration to their will, or full or partial revocation of their will;
- the testator executed the document in the presence of one or two witnesses who were present by way of video conference but not physically
- the witness or witnesses were able to identify the document executed; and
- the reason why the testator was unable to execute the will in the physical presence of two witnesses was because of either government enforced or recommended, or self-imposed, isolation or quarantine arising from the COVID 19 pandemic.
The Practice Direction applies to Wills executed between 1 March 2020 and 30 September 2020.
At this stage it is unclear whether Western Australia will implement any changes to its witnessing requirements.
With the Western Australian government recently relaxing social distancing restrictions to allow 10 person gatherings, it seems unlikely that such changes will be made.
The Tasmanian government has introduced similar legislation to that of Victoria, but it does not specifically contemplate regulations being made in relation to witnessing documents.
Instead, it allows the Minister to declare that signatures or documents may be “taken” or “evidenced” by electronic means (as specified in the relevant notice/declaration) and so the current requirements for witnessing Wills in Tasmania remain unchanged.
Northern Territory and the ACT
There do not appear to be any indication that the Northern Territory or the ACT will move to allow witnessing Wills, other than in person.