Changes to Witnessing of Wills and Enduring Documents due to COVID-19 Pandemic

The COVID-19 Emergency Response Act 2020 (Qld) (Act) was passed on 23 April 2020 in response to the extraordinary circumstances arising out of the COVID-19 Pandemic. The Act allows for Queensland State Government Ministers to issue extraordinary regulations relating to existing legislation in order to facilitate the continuance of public administration, judicial process and other activities disrupted by the COVID-19 emergency. Regulations may have retrospective effect to a date no earlier than 19 March 2020 and may not extend time periods beyond 31 December 2020.

On 15 May 2020 the Queensland Government published the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Regulation) pursuant to the powers under the Act. The Regulation provides that the requirement for a witness to be present when a will is signed under the Succession Act 1981 (Qld) or an enduring power of attorney is signed under the Powers of Attorney Act 1998 (Qld) is satisfied by the witness being ‘present’ by audio visual link provided that the witness or, if there are 2 witnesses, at least one of the witnesses is a special witness. In this regard special witness includes a justice of the peace, commissioner for declarations, notary public and Australian legal practitioner.

Regardless of the document being signed:

• the audio-visual link must have sufficient quality of sound and imagery to satisfy the witness that the signatory is signing the document
• the witness must observe the signatory signing the document in real time
• the signatory must sign each page of the document
• the witness must be satisfied that the signatory is freely and voluntarily signing the document
• the witness must take reasonable steps to verify the identity of the signatory and that the name of the signatory matches the name of the signatory written on the document

The Regulation capitalises on the advances made in audio-visual technology over recent years to provide a practical solution to problems created by social distancing and lockdown measures required to combat the spread of COVID-19. Until the expiry of the Regulation on 31 December 2020, prospective testators can gain peace of mind by preparing their estate plan without the risk of contracting the novel coronavirus by interacting with a documentary witness. The experienced estate planning lawyers at Rostron Carlyle Rojas are available to assist you with remote preparation and execution of wills and enduring documents throughout this period.

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