How to sign a Will in isolation, lockdown and quarantine

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How to sign your Wills in isolation and lockdown

Due to the Coronavirus, best practice is to avoid strangers and non-family members. However, a Will is only witnessed by strangers and persons unrelated to you. During ‘lockdowns’ you cannot leave your home. The only witnesses may be your next-door neighbours.

When couples sign their Wills together:

  1. Print your Legal Consolidated 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.)
  2. Find two people that are: over 18 years of age and of sound mind. The witnesses are not related to you. They have no chance of ever being related to you (e.g. it is not your son’s girlfriend. This is because your son may marry that person. And then you are related to the witness). The witnesses cannot get anything under the Will. The best witnesses are ‘strangers’ or the ‘next-door neighbours’.
  3. All beneficiaries such as your children move to another part of your home.
  4. 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.
  5. Get 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 a hand sanitiser.

    Adj Prof Brett Davies signing client's Will in Law Firm's carpark due to Australian COVID restriction

    Professor Brett Davies signing client’s Will in Law Firm’s carpark due to Australian COVID restrictions in 2022.

  6. Never 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.
  7. You sign your Legal Consolidated 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.
  8. 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.
  9. 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.
  10. If you or your witnesses need reading glasses, then do not 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, video conferencing technology like Skype, WhatsApp, FaceTime and Zoom are 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 rushed 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 audiovisual 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 piece of legislation?

Instead, follow the above best practice rules for signing a Will in isolation and in a hospital.

Need help signing a Legal Consolidated Will and POA? Our Wills and POAs are supported for the rest of your life. You can update your Wills and POAs for free. If you need help signing telephone the law firm.

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 the 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 – electronic signing of documents fails

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.

(Much like Mark Zuckerberg copying Snapchat) QLD shamelessly copies the Victorian approach. But improves on it. But then goes 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.

Queensland introduced the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (QLD) These QLD Regulations are then updated by the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Amendment Regulation 2020. And amended, yet again, by the COVID-19 Emergency Response and Other Legislation Amendment Act 2020.

You read all of the above legislation together. Good luck with that. QLD provides that an instrument still takes effect as a deed. This is even if it is not written on paper, parchment or vellum. This is the only Australian state that expressly includes wording for the common-law rule that a deed is written on paper, parchment or vellum.

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 electronic signing – 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 an 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]

This prevents the kind of remote witnessing and attestation of signatures or verification of identity which is permitted in NSW and Victoria.

Western Australia gets in on the electronic act

See Covid-19 Response and Economic Recovery Omnibus Act 2020 (WA) pt 2 div 4 (in operation until 31/12/2022: Covid-19 Omnibus Act 2020 Postponement Proclamation 2021).

It allows for certain documents (eg, affidavits and statutory declarations; but not wills) to be signed and witnessed by AV link.

Again, do not take the bait. Go back to old school.

Australian company Constitutions do not allow electronic signing

The Federal Government temporarily modified the Corporations Act 2001 (Cth). See Corporations (Coronavirus Economic Response) Determination (No. 1) 2020. This was in May 2020. The Determination provides relief for companies. This is to execute documents electronically. The Determination was extended to 21 March 2021.

Does this work? Under section 127(3) Corporations Act a company may execute a document as a deed. This is if:

  • the document is stated to be a deed and is executed as a deed; and
  • it is executed under section 127(1) or 127(2)

Section 127(4) clarifies that section 127 does not limit the ways in which a company may execute a deed. Section 127(3) Company Act does state that a company may execute a deed if it is expressed to be a deed and executed in accordance with s 127(1) or (2).

We are worried. There is nothing in the Determination to expressly deal with the common law requirement. This is that a deed is made on paper, parchment or vellum.

Further, a Company Constitution sets out the rules that govern the company. No matter what legislation is passed the Company only acts under its own rules. Now you can amend the Company Constitution here. This allows electronic signing if the relevant State allows for it. But we recommend you sign nothing electronically.

All of these Constitution updates allow for electronic signing:

Federal Government and electronic signing – Virtual AGMs and electronic communication

The Corporations Amendment (Meetings and Documents) Act 2022 passed the Senate on 10 February 2022

The changes allow companies to:

  • hold physical and hybrid meetings and, if expressly permitted by the company’s constitution, wholly virtual meetings.
  • ensure that technology used for virtual meetings allows members to participate in the meeting orally and in writing;
  • use technology to sign documents electronically, including corporate agreements and deeds; and
  • send documents in hard or soft copy and give members the flexibility to receive documents in their preferred format.

Again, while Legal Consolidated Constitutions are updated with these powers. It is better to have face to face meetings where possible.

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 build and sign clients’ Wills if confined to a hospital bed (on a ventilator or otherwise) and in quarantine:

  1. Place the unsigned Will on the bed with 3 identical blue pens.
  2. The patient reads the Will to make sure it accords with their wishes.
  3. 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 through a car window parked on the side of the road.)
  4. The two witnesses are over 18 years of age and of sound mind. Doctors, nurses, orderlies and strangers visiting the hospital make good witnesses. This is if they are prepared to perform this duty.
  5. 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 throughout 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.
  6. The Will maker takes one of the blue pens and signs the Will on each page. And then leaves the Will on the end of the bed.
  7. One of the witnesses takes the Will together with the two unused blue pens to the doorway (or behind a glass enclosure). The two witnesses sign on every page.
  8. 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.
  9. The patient stores the fully signed Will as per the covering letter from Legal Consolidated that came with the Will.

For help signing Wills and POAs telephone Legal Consolidated on 1800 141 612. Or speak with me personally on my mobile 0477 796 959.

Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJDFamily Trust Deed Family Discretionary Trust
Legal Consolidated Barristers and Solicitors
National Australian law firm

National: 1800 141 612
After hours: 0477 796 959
Email: [email protected]

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