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3. Virtual witnessing of Wills

Virtual witnessing of Wills

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.