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Virtual witnessing of Wills

7 May 2020

Author: Anna Hacker National Manager, Estate Planning - Australian Unity Trustees Legal Services

As social distancing and various levels of isolation become our way of life for the foreseeable future, whole industries are embracing new ways of using technology to continue their business. From Zoom yoga classes to skyping your psychologist, digitisation has been whole heartedly embraced over the last month, with estate planning the next area to go ‘virtual’.

Encouragingly the NSW and QLD State Governments have taken proactive steps in making it easier to put estate planning arrangements in place at this time. However, the updated legislation still requires Wills, Powers of Attorney, Deeds and other documents to be remotely witnessed as part of a virtual meeting. 

And there still remains some misunderstanding. 

In our discussions with clients there has been some confusion about having documents electronically witnessed as opposed to having them remotely witnessed – which are two very different things.

Some of the confusion stems from the title of the updated legislation (electronic transactions amendment) which can be misconstrued to mean that documents like Wills, Powers of Attorney and Deeds can be signed via an email exchange. This is not the case; everyone is still required to physically sign with a pen, albeit with witnesses signing separate copies of the same document.

In the case of witnessing a signature, the legislation is clear that the person witnessing the signing of a document – virtual or otherwise – must be able to observe the person signing the document in real time, attest and confirm the witnessing of the signature, be satisfied that the document being signed is the same document or a copy of the document signed by the signatory and specify the method used to witness the signature of the signatory.

As other states and territories look to follow suit, the changes are a step towards the legal industry embracing advancements in technology beyond the pandemic and could be setting a precedent for future circumstances where remote witnessing of Wills may be appropriate.

Nevertheless, the process outlined in the regulation is very technical and precise, so it’s critical individuals seek legal advice when undertaking their estate planning.

Watch the below video to learn more about virtual witnessing of Wills. 

Important information

This information is provided by Australian Unity Trustees Ltd ABN 55 162 061 556, AFSL 483220. Australian Unity This information is provided by Australian Unity Trustees Ltd ABN 55 162 061 556, AFSL 483220. Australian Unity Trustees Ltd is a wholly owned subsidiary of Australian Unity Limited. Any advice on this site is general advice only and does not take into account the circumstances, objectives, financial situation or needs of any particular person. It does not represent legal, tax, or personal advice and should not be relied on as such. You should obtain legal or financial advice relevant to your circumstances before making any decisions. Nothing on this site represents an offer or solicitation by Australian Unity Trustees Ltd in relation to securities or investments in any jurisdiction. Where a particular financial product is mentioned, you should consider the Product Disclosure Statement before making any decisions in relation to the product and Australian Unity Trustees Ltd makes no guarantees regarding future performance or in relation to any particular outcome. Whilst every care has been taken in the preparation of this information, it may not remain current after the date on which it is published and Australian Unity Trustees Ltd and its related bodies corporate make no representation as to its accuracy or completeness.

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