COVID-19: signing a will or other document by video

UPDATE ON OUR EARLIER ADVICE ABOUT SIGNING WILLS REMOTELY

On Tuesday 22 April 2020 the NSW Attorney General Mark Speakman made a regulation that allows documents to be witnessed using a video link. This includes a will, power of attorney, appointment of enduring guardian, affidavit, deed, statutory declaration.

This is a massive and significant change to the pre-existing rules about witnessing documents. It’s a timely change too, and allows for documents to be witnessed despite COVID-19 related restrictions. It’s a change from our earlier note on the topic, here: COVID-19: Can you make a Will remotely?

There are a few things to note:

  1. the video link needs to have real time sound and vision
  2. the witness needs to see the signatory sign the document in real time
  3. the witness needs to attest (sign) the same document or a copy of the document
  4. the witness needs to be “reasonably satisfied” that the document they sign is the same as what is signed by the signatory
  5. importantly, the witness needs to endorse the document with a statement that sets out how they witnessed the signature and that it was witnessed in accordance with the regulation . To be safe the endorsement should refer specifically to clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017
  6. the regs provide all the other normal requirements apply (confirming identity of the signatory etc), except for one, which is pretty obvious – the witness (or witnesses) don’t need to by physically present, they just need to be present by video link

So, taking the example of a will:

  • you would still need 2 adult witnesses
  • the 2 witnesses would need to see the will maker sign the will. They should also see each other sign too
  • the will maker would need to see the witnesses sign the will (or a counterpart copy)
  • the witnesses would need to endorse the will to say how they witnessed it and that it was done per the regulations (inserting full name of regulations and particular provision)

These regulations are designed to respond to the COVID-19 situation. They will expire in 6 months unless NSW Parliament decides that they will expire earlier.

SUPER IMPORTANT NOTE

Just because we can now sign a will and other documents by video, doesn’t mean it’s without risk. Doing things this way invites different avenues for a person to challenge a will or for a court to hold the Will invalid. If you’re going to make a new will or amend an existing will – get in touch.

For other guidance about COVID-19 related issues, click here.