How to sign your Wills when you are in quarantine
Due to the Coronavirus, best practice is to not be with strangers or non-family members. However, a Will is only witnessed by strangers or persons that are not related to you. During periods of ‘lockdown’ in your community when you cannot leave your home the only witnesses maybe your next-door neighbours.
This process assumes a couple are signing their Wills together:
- Print your Wills single-sided in black and white. Do not print double-sided. (If you have no printer or no electricity and Australia Post or couriers are still operating then ask a person with a printer to print out and courier you the Wills.)
- Find two people that are: over 18 years of age and of sound mind. The witnesses cannot be related to you or have any chance of being related to you (e.g. it can’t be your son’s girlfriend because your son could marry that person and then you would be related to the witness). The witnesses cannot be persons that are likely to get anything under the Will. The best witnesses are ‘strangers’ or the ‘next-door neighbours’.
- All beneficiaries such as your children move to another part of your home.
- Inside your home move to a closed window or closed glass balcony. Your two witnesses are on the other side of the glass. This is so that you have no contact with each other- other than being able to see and hear your witnesses.
- You need at least 2 identical blue pens. The witnesses can not and should not use a pen that has come into physical contact with you recently – unless it is sanitised. Pick up one of the pens with a tissue and leave it on the outside of the window or glass door before your witnesses are due to arrive. Your witnesses may wear gloves and wipe the pen down with hand sanitiser.
- No one can lose visual sight with each other at any time. For example, if you need to use the toilet during the Will signing then bin the Wills, print them off again and start the process anew. If either of you or either of your witnesses loses sight of each other during the signing process, then tear up the Wills and print out another copy of the Wills and start the Will signing process again.
- You sign your Wills on each and every page where marked. Ensure that you date the Wills with the date at which the Wills are signed and witnessed.
- You then ask your witnesses to step away from the glass as far as possible, but without losing sight of you and of each other. You then open the glass and leave the signed Wills on the floor. You then shut the glass.
- Both witnesses move back to the closed glass, pick up the Wills and (WITH THE SIMILAR BLUE PEN) sign each page of the Wills. If you signed with different coloured pens (e.g. a dark blue and a light blue) then tear up the Wills. Print out new Wills and start the process again.
- If you or your witnesses need reading glasses, then don’t sign your Will until you put on those glasses.
Professor Davies declares NSW electronic Will signing law a failure
NSW has been careless and reckless in its failed attempt to allow people in NSW to sign Wills electronically.
As of 22 April 2020, in NSW, temporarily, during the Coronavirus, video conferencing technology like Skype, WhatsApp, FaceTime and Zoom can now be used in the witnessing of important legal documents like Wills, powers of attorney and statutory declarations. Documents include:
- a will
- a power of attorney or enduring power of attorney
- a deed or agreement
- an enduring guardianship appointment
- an affidavit, including an annexure or exhibit to the affidavit
- a statutory declaration
An “audiovisual link” is defined as technology that enables continuous and contemporaneous audio and visual communication. This is between persons at different places, including video conferencing. Given the weak Internet thanks to the ineffective NBN good luck with the ‘continuous’ requirement.
Does it include a Will maker signing in London, while one witness is in Hobart and the other witness is in Spain? Do you need to be in NSW or Australia for that matter? The Will, at best, only operates for assets you have in NSW. NSW is not a signatory to the Hague Convention (only Australia is). If you have a bank account with the NAB then you need to be Victorian law compliant. Contrary to what we think, NSW is not Australia.
These new temporary regulations are made under section 17 Electronic Transactions Act (NSW). It is a brave person who relies on such unusual and untested methods of witnessing. For example, a reporter telephoned me under the belief that a wet signature is no longer required. The NSW new legislation says nothing of the sort.
What does the person witnessing the document write on the Will? Would you need to put ‘this document was endorsed and signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Sch 1 to the Electronic Transactions Regulation 2017 (NSW)‘? What a mouthful. What do ‘endorsed’ and ‘counterpart’ even mean? In 40 years time when you die who is going to remember this weird temporary piece of legislation?
Instead, this is best practice for signing a Will in isolation and in a hospital.
If you need help then you can telephone our Estate Planning 24/7 hotline and speak to a lawyer who will help you. Obviously, this service is only available if you built your 3-Generation Testamentary Trust Wills on our website.
Victoria’s reckless ‘temporary’ electronic signing rules do not work
Temporary changes in Victoria are meant to allow the electronic signing of Wills. This quick legislation is flawed.
Supposedly this is to allow you to sign remotely:
- powers of attorneys
- Wills and 3-Generation Testamentary Trust Wills
Even the name of the act and regulation smacks of a government department out of control and out of its depth:
COVID-19 Omnibus (Emergency Measures) Act 2020
COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
The changes are in place until revoked. Documents signed under this temporary legislation are meant to remain valid. But on a careful reading of the legislation, we doubt that this is the case.
Bizarrely, under your electronic signature, you have to write a “statement”. In NSW you are given no help with this. In Victoria there is a suggestion you write this:
This document was electronically signed in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
But few lawyers, and even the regulators themselves, do not believe this is the best wording. What is the best wording? No one knows.
When the Coronavirus is long gone anyone that went down this rocky road risk having invalid Wills and POAs.
Even before COVID-19, about a third of homemade POAs are invalid. And about 12% of lawyer prepared POAs are invalid. Relying on these hasty electronic signature rules only worsens your odds that your Wills and POAs are effective.
“Counterparts” The Victorian regulation also expressly contemplates the signing of a document electronically in “counterparts”. “Counterparts” is where a number of people print out the same document but sign it in different locations. You collect them all up and together they are the document. Sadly, Victoria is imposing an additional requirement that each person whose signature is required on the document or whose consent to electronic signing is required receives a copy of each signed counterpart. See COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) Pt 2 reg 12. This is a most unnecessary burden, which NSW rightfully refused to put in its legislation.
Queensland opens pandora’s box
Queensland also in a fit of panic passed a sweeping package of regulations that allow deeds, mortgages, general powers of attorney, affidavits and declarations to be signed electronically on a temporary basis.
QLD shamelessly copied the Victorian approach but improved on it. But then went off on a frolic of its own, to create new nightmares.
Like NSW, the ACT, Victoria and other States, the changes are meant to permit documents to be witnessed via audiovisual (AV) links. This was just another knee jerk reaction to the COVID-19 pandemic. See COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 QLD.
Qld Deeds: Because of poor language, it is not certain as to whether “Deeds” in general can be witnessed electronically in other States. But in QLD the regulations explicitly remove the requirement for a deed to be made on paper or parchment and for a deed signed by an individual to be witnessed. I still do not like the QLD regulations, but at least they have done better than their southern brethren.
Wills and POAs: The QLD regulations allow enduring powers of attorney and advance health directives (strangely called ‘enduring documents’) and Wills to be witnessed via AV link by a “special witness”. A special witness who witnesses the signing of a document via AV link signs a certificate that is kept with the document and states particular matters, including that the document was signed and witnessed under the regulations. What that wording is, no one knows. But no doubt the Qld court will work that out in 20 years time when as these timebombs come before the Courts.
Like Pandora’s box, this gift from the QLD State government seems valuable but is, in reality, is a curse to your loved ones.
South Australia – does not work, but did a better job than NSW and Victoria
South Australia copied NSW and Victoria. Which is a mess. But with one improvement.
In relation to remote witnessing, the Act specifically provides that a requirement for two or more persons to be physically present is satisfied if the persons meet or the transaction takes place remotely using audio link, audio-visual link or any other means of communication prescribed by the regulations.
However, regulations specifically exclude any “requirement that a person be physically present to witness the signing, execution, certification or stamping of a document or to take any oath, affirmation or declaration in relation to a document” from the remote meeting permission. Thereby preventing the kind of remote witnessing and attestation of signatures or verification of identity permitted in NSW and Victoria.
How to sign Wills in a hospital bed in Australia
Many Accountants are building 3-Generation Testamentary Trust Wills for their clients.
This is how you can build and sign clients Wills if confined to a hospital bed (on a ventilator or otherwise) and in quarantine:
- Place the unsigned Will on the bed with 3 identical blue pens.
- The patient reads the Will to make sure it accords with their wishes.
- Family, relatives and potential beneficiaries leave the room (they were probably not allowed to be in the room to start with). It is acceptable for other patients to be in the room, provided they are not related to the person signing the Will and, of course, they are not beneficiaries. (The signing of the Will does not need to be a private or solemn affair. A Will could be signed in a public place like a park or though a car window parked on the side of the road.)
- The two witnesses can be any persons over 18 years of age and of sound mind. Doctors, nurses, orderlies and strangers visiting the hospital make good witnesses, if they are prepared to perform this duty.
- The two witnesses stand at the hospital room doorway or as far as they can from the patient. But they can never lose visual sight:
- At no time can the three people ever lose visual sight of each other.
- The person signing the Will must never lose sight of the two witnesses through the entire Will signing.
- The two witnesses must never lose sight of each other and of the Will maker.
- The Will maker must watch the two witnesses fully witness the Will.
- The witnesses must watch each other fully witness the Will.
- The Will maker takes one of blue pens and signs the Will on each page. And then leaves the Will on the end of the bed.
- One of the witnesses takes the Will together with the two unused blue pens to the door way (or behind a glass enclosure). The two witnesses sign on every page.
- One of the witnesses puts the now fully signed Will on the bed. The witnesses leave. The witnesses can keep their blue pens or put them in the bin, as they see fit.
- The patient stores the fully signed Will as per the covering letter from Legal Consolidated that came with the Will.
At any time, for help in signing telephone a solicitor from Legal Consolidated 24/7 on 1800 141 612 or speak with me personally on my mobile 0477 796 959.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm
Toll free: 1800 141 612
Mobile: 0477 796 959
Email: [email protected]