06 May 2020

Signing estate planning docs during COVID-19

It has been a great relief to us during these uncertain times that with aid of technology, we have been able to continue to assist our clients while respecting social distancing. This is particularly the case in our estate planning work, where we have seen a significant rise in enquiries as the spread of Covid-19 pushes many to be more mindful of their own mortality.

However, while we can take instructions and prepare documents without our clients ever having to leave the safety of their homes, the challenge faced by estate planning lawyers is how to navigate strict witnessing requirements without asking clients to put themselves at risk or contravene social distancing rules. Fortunately, there are ways to achieve this.

In Western Australia, the Wills Act 1970 sets out the formal requirements for a valid Will. Among those is the requirement that the Will be signed by the testator (the will-maker) in the presence of two witnesses – which generally compels a gathering of at least three people. Those who are high risk and in isolation or quarantined may find this impossible.

Adding to the trouble is it is generally preferable that witnesses of a Will are not also beneficiaries, to avoid any suggestion of undue influence. This is different to some other States where their laws actively prohibit a beneficiary from witnessing.

Usually lawyers tend to witness the Wills themselves, in their offices, to ensure that the proper signing conventions are followed. But where movement is restricted, we must find new ways. The best option for any given will maker will be entirely dependent on their own particular circumstances, and we are finding novel ways of signing all the time. Some of the more commonly suggested measures include:

  • Inviting two independent witnesses to your home. Recent relaxation of WA’s restrictions on non-work gatherings have made this a much more feasible option, but this does not resolve the issue for all of us, and in particular those under quarantine, or voluntarily self-isolating due to high risk factors.
  • If the testator is not working from home, signing before two colleagues in their workplace.
    Signing before two people during a separate permitted activity, such as a medical appointment.
  • If the testator is under quarantine or voluntarily self-isolating and there are other adults also in the home, even if they are beneficiaries under the Will, they may act as one or both of the witnesses, without impacting their entitlement to the Estate. If this option is followed, a further short statement may be prepared, explaining the circumstances in which the Will was signed. This kind of statement could be used to dispel any suggestion of undue influence when it comes time to submit the Will for a Grant of Probate after the testator’s death.
  • If the testator is under quarantine or voluntarily self-isolating and there are no other adults in the home, possible methods of signing include:
  • Arranging for the witnesses to attend at the testator’s home and observe the testator sign the Will through a closed window, before passing the documents, say, underneath a door or through the window to be signed by the witnesses; or
  • Neighbours witnessing the signing of the Will from over the fence.
    Some States have recently introduced legislation that allows for ‘electronic witnessing’ of the Will, where the testator signs the Will during a video conference. There are very strict conditions that must be met for this kind of witnessing to be considered valid, however, and for the time being this method of witnessing Wills is not available in WA.

Although some of the options listed above do not quite meet the ‘gold standard’ of witnessing, it is reassuring to know that in times of crisis, options remain available that will meet the requirements of the Wills Act and allow the creation of valid estate planning documents. If your estate plan needs updating, don’t put it off. Feel free to get in touch with us so we can talk about the best way forward for you.

Andrew Bower began his legal career as a law clerk in 2008, whilst studying a Bachelor of Laws and a Bachelor of Commerce majoring in finance at Murdoch University.