In the current COVID-19 climate, it is crucial people sort fact from fiction.
We have received a number of enquiries from concerned clients regarding their Wills and Enduring Powers of Attorney.
Although these times are challenging, there are still certain requirements that must be followed when executing Wills and Enduring Powers of Attorney.
We have also seen a lot of misinformation circulating online that is either incorrect or not relevant to someone in Queensland.
For example, you certainly (in Queensland) can’t “electronically” or “digitally” sign your Will or Enduring Power of Attorney.
COVID19 can’t be used as a blanket excuse or justification for not observing the requirements of execution.
Set out below are some general points regarding the execution of Wills. There are limited exceptions so you should not act solely on the matters detailed below and you should seek our advice if you have any queries.
We have (in accordance with Government requirements) procedures in place to ensure the correct execution of documentation.
If steps are done incorrectly (or are in some way incomplete) the documents may be of no legal effect or it may necessitate a costly application to the Court after you pass away to try to have your attempts at execution accepted.
For a Will to be valid, it needs to be executed in the presence of two (2) people who also sign your Will as witnesses.
The witnesses need to be entirely independent. They should not be family members, beneficiaries or spouses of beneficiaries named in the Will.
In Queensland there is no present provision to enable a person to “witness” a Will through video link or telephone.
The Queensland position still requires that documents be executed “in the presence” of the witnesses.
This can obviously create difficulties given the current COVID19 situation.
There are only some very limited circumstances where the Court can accept a Will that has not been signed strictly in accordance with the requirements above. This requires the Court to be satisfied of certain matters including your intention at the time of “informally” executing your Will.
It is most important you do not act without getting legal advice.