Witnessing Wills in Queensland

Witnessing Wills in Queensland

On 23 April this year, the Covid-19 Emergency Response Act 2020 received royal assent and came into force in response to the ever-changing requirement for new law as a result of the Covid-19 global pandemic.

Covid-19 Emergency Response

Wills and Enduring Documents

On 23 April this year, the Covid-19 Emergency Response Act 2020 received royal assent and came into force in response to the ever-changing requirement for new law as a result of the Covid-19 global pandemic.

Among other things, this act allows the government to pass regulations that temporarily amend other Acts, in the interest of reducing physical contact between persons, where that contact would have been unavoidable if the Act was not amended.

Such Acts include the Succession Act 1981 and the Powers of Attorney Act 1998. These acts regulate the manner by which estate documents including Wills, Enduring Powers of Attorney and Advance Health Directives are to be prepared, executed, and enforced.

On 15 May 2020, the Queensland Government published the Justice Legislation (Covid-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 in accordance with s 9 of the Covid-19 Emergency Response Act. This regulation specifically covers the witnessing requirements set out by the Succession Act and the Powers of Attorney Act in the interest of reducing the requirement for physical contact.

Wills

Under the Succession Act, a Will is only considered a Will if it has been signed by the Testator (being the person the Will is being made for) and the signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.  At least 2 of the witnesses must attest and sign the will in the presence of the testator.

Enduring Powers of Attorney

Under the Powers of Attorney Act, an Enduring Power of Attorney must be signed by the principle (the person conferring the power to their attorney) and witnessed in person by an “eligible witness”. An eligible witness is either a Lawyer, Justice of the Peace, or Notary Public.

Advance Health Directives

Under the Powers of Attorney Act, and Advance Health Directive must be signed by the principle, witnessed by an eligible witness, and accompanied by a certificate signed and witnessed by a doctor stating the principal, at the time of making the advance health directive, appeared to the doctor to have the capacity necessary to make it.

Under the new regulation, a “doctor” also means a registered nurse for the purpose of providing the required certificate for an Advance Health Directive.

Effect of the Justice Legislation (Covid-19 Emergency Response – Wills and Enduring Documents) Regulation 2020

The new regulation allows for any of these documents to be witnessed by audio-visual link, to avoid the requirement of meeting in person. There are, however, requirements for who can, and how to, witness an execution by video link.

A witness who witnesses a document by audio-visual link must be a “special witness”. Under the Act, a special witness is:

  • an Australian Legal Practitioner (a Lawyer);
  • a notary Public;
  • a justice of the peace or commissioner for declarations only if the justice of they are employed by the law practice that prepared the document and they witness documents in the course of their employment or they have been approved by the chief executive to be a special witness; or
  • an employee of the public trustee only if the document was prepared by the public trustee.

For witnessing a will, only one of the minimum two witnesses is required to be a special witness.

Requirements for Witnessing by Audio Visual Link

A document may be witnessed by audio visual link only if:

(a)    if applicable, the witness observes the signatory direct the substitute signatory to sign the document;

(b)    the audio visual link enables the witness to be satisfied, by the sounds and images made by the link, that the signatory or substitute signatory is signing the document;

(c)    the witness observes the signatory or substitute signatory signing the document in real time;

(d)    the signatory or substitute signatory signs each page of the document; and

(e)    the witness is satisfied that the signatory is freely and voluntarily signing the document or directing the substitute signatory to sign the document.

A witness must take reasonable steps to verify the identity of the signatory of the documents and that the name of the signatory matches the name written on the document.

Witnesses can only confirm the witnessed document or a true copy of the document

This means either the signatory needs to deliver or post the originally signed document witnessed by the witness, to the witness for their confirmation (signing), or, the witness must be satisfied that a copy of the document provided (ie. scanned and emailed to the witness) is a true copy of the document witnessed.

The witness must confirm the document as soon as practicable after witnessing the document by signing every page.

Certificate by Special Witness

In instances where the witness witnesses a substitute signatory sign on behalf of the testator or principal, they will also need to sign and keep with document, a certificate stating that:

(a)    that the document was signed and witnessed during the relevant period;

(b)    that the document was signed and witnessed in accordance with this regulation;

(c)    the steps the witness took to verify the identity of the signatory; and

(d)    if a substitute signatory signed the document—

(i)    the identity of the substitute signatory; and

(ii)     a description of the direction given by the signatory to the substitute signatory; and

(e)    if a substitute signatory was directed by the signatory by audio visual link to sign the document—the grounds on which the witness is satisfied the substitute signatory is permitted under section 13 to be a substitute signatory for the document; and

(f)    the process followed for signing and witnessing the document; and

(g)    that the special witness is a special witness; and

(h)    whether an audio visual recording was made under section 26 of the signing or witnessing of the document; and

(i)    any other matters the special witness considers relevant to the signing or witnessing of the document.

When document starts to be effective 

A document made, signed and witnessed in accordance with this regulation starts to be effective when the signatory or substitute signatory signs the document even if the witness confirms the document on a later day.

Presumptions

In a proceeding, a document witnessed in accordance with the regulation will be presumed valid in all respects under the regulation unless a party to the proceeding, by reasonable notice, requires proof of its validity.

For this reason, it is suggested that all parties involved, but especially the witnessing party/parties retains sufficient evidence of the witnessing, including, if permitted by the signatory, audio-visual recordings of the execution witnessed, including the verification of the identity of the signatory.

Expiry of the regulation

This regulation will expire on 31 December 2020. This means that the witnessing requirements will revert to how they are dealt with by their respective acts as of 1 January 2020.

Final note

Wills and Enduring documents are two of the most important documents a person will sign and that is why the requirements for their execution are so strictly enforced. While it is clearly necessary for some allowances to be made during these unprecedented times to allow people the comfort and security of finalising their estate documents, it is also important that people remember this is a temporary amendment and strict witnessing requirements will and should return to normal when the government grants that it is safe to do so.

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