Video Witnessing, Covid-19, wills & estates

Video Witnessing in 2020 – Wills and Enduring Powers of Attorney

13 May 2020

Recently we discussed how the COVID-19 pandemic has brought to the forefront the importance of having a Will and Powers of Attorney in place. It has also highlighted the challenges of arranging and executing these documents whilst in lockdown.

On the 12 May 2020 the Victorian Attorney-General passed Regulations in the form of the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations). We welcome these changes which modify the application of various Acts to provide for among other things, electronic signatures and the witnessing of the signing of documents by audio visual link.

The Regulations will expire on 24 October 2020.

What does this mean for you?

If you are unable to leave your home due to quarantine, lockdown or because you are a vulnerable person and are unable to locate two qualifying witnesses, under the new regulations you will be able to execute your documents via Audio-Visual link with your lawyer or other qualified witnesses.

Powers of Attorney

Division 4 of the Act relates to Enduring Powers of Attorney (EPA), it provides for documents to be signed and witnessed using audio visual technology. The Regulations focus on both execution and the witnessing of EPAs.

The Regulations allow for a combination of witnesses to be either present at signing or remotely via audio visual.

When witnessing, each remote witness must sign and date a copy and certify in writing on that copy a statement indicating that the witnessing was done using an audio visual link in accordance with the manner required by section 36 of the Powers of Attorney Act 2014, as modified by regulation 36.

Importantly, the signing and witnessing must be undertaken on the same day and it does not matter how a copy of the instrument is transmitted for the purposes of subregulation (5).

Wills

Part 5 of the Regulations relates to the Wills Act 1997. The Regulations modify the Wills Act to allow for the following:

  • a Will to be signed by electronic means with the person making on the document a statement indicating that the signature was made by electronic means in accordance with this regulation.
  • Witnessing of a Will by audio visual link;
  • Signing at the testator’s direction by audio visual link;
  • Revoking a Will at the testator’s direction by audio visual link;
  • Altering a Will with witnesses using audio visual link.

For all of the above it must be written on the documents that all witnessing was undertaken using audio visual link in accordance with the regulations.

These temporary regulations will give comfort to individuals wishing to arrange or amend their affairs during the pandemic whilst adhering to social distancing and isolation. For now, witnesses to the signing of a Will or enduring power of attorney don’t have to be in the physical presence of the person signing – they can witness by video link.

If you have any questions or concerns about the preparation of a Will and Powers of Attorney while in self-isolation, or wish to provide instructions to prepare these documents, please contact the Wills & Estates Team for up to date legal advice and assistance.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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