Signing a Will – How the Law is adapting to the COVID-19 Restrictions Signing a Will – How the Law is adapting to the COVID-19 Restrictions

Signing a Will – How the Law is adapting to the COVID-19 Restrictions

27 April 2020 | Wills & Estates

Given the uncertainty surrounding the COVID-19 pandemic, and the restrictions on our mobility, you may be wondering how you can legally make or amend your Will without breaching the rules around social distancing and travelling.

It is important that you are aware of the formal requirements in your relevant State to ensure that any Will you make (or amend) will be considered valid. Our priority is to work with you to ensure that you make a valid Will, regardless of where you live.

For the moment, New South Wales and Queensland are the only states to introduce legislation that provides alternative arrangements for the signing and witnessing of documents.

We have prepared a summary to explain how your Will can be signed during this extended period of isolation. Please follow the links below to your state of residence.

Queensland
New South Wales
Victoria
Western Australia
South Australia
Tasmania

Where it is not possible to comply with the formal requirements (i.e. witnessing), each State has legislation which allows the Court to dispense with those requirements and determine whether an informally made Will is valid, for example, where the will is not witnessed or not witnessed correctly.  

If the Court is asked to decide whether an informally made Will is valid, it will look at the circumstances of the individual case. Some recent cases include:

  • Where the deceased had prepared a document titled ‘Last Will and Testament’, which included the deceased’s digital signature, and was saved to his laptop hard drive – the court found the Will to be valid;
  • Where a deceased person had prepared a DVD setting out how they wanted their estate to be divided – the court found the DVD to be a valid document to give effect to the deceased person’s intentions.

One person was not so lucky however when the Court ruled that scribblings on the back of a beer carton did not constitute a valid Last Will and Testament. We certainly do not encourage you to take this risk with your Will.

So what should I do?

If you would like to make or change your Will during the COVID-19 restrictions, you must ensure that you adhere to the formal requirements in order to guarantee the validity of the document.  If your Will is declared invalid, it will have no legal effect and subsequently your estate will not be distributed in accordance with your wishes.

If you have any questions or concerns, seek the advice of an estate planning lawyer to help you make sense of this often complicated area of law.

The team at Barry.Nilsson. are here to help. We invite you to get in touch.

Get In Touch

Joanne Carusi

Joanne Carusi

Special Counsel

Emma Blay

Emma Blay

Associate