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Electronic signing and virtual witnessing of Wills and Enduring Powers of Attorney in New South Wales

Clare Hesbrook & Jana Sosner

Following the enactment of the Electronic Transaction Amendment (COVID-19 Witnessing of Documents) Regulation 2020, Wills, Appointments of Enduring Guardian and Enduring Powers of Attorneys can be witnessed via audio-visual link such as Zoom, Microsoft Teams or FaceTime.

Victoria has also introduced similar legislation and has recently made these changes permanent, unlike NSW, where these provisions are due to expire at the end of this year.

In summary:

1. Will, Appointments of Enduring Guardian, Enduring Powers of Attorney (as well as Deeds and Affidavits) can be witnessed remotely. The signature of the will-maker and/or the Principal must be done with the witnesses clearly seeing the person signing the relevant document and ensuring that it is the correct document.

2. For Wills, two witnesses are still required and the usual requirements about appropriate witnesses are still in force.

3. The witnesses can witness by audio visual link (in addition to being able to do so in person).

4. The witnesses must ensure the Will, Appointment of Enduring Guardian and/or Enduring Power of Attorney includes a statement that the witnessing was done using an audio visual link in accordance with the remote procedures identified under the respective Acts.

5. The witness must sign the documents as soon as practicable after the will maker and/or Principal has signed the documents;

6. A recording of the execution can also be made, provided all the parties consent to the recording being made.

Care and diligence must be exercised to ensure that the will-maker or Principal is not under any undue influence. This could include asking the client to take their camera around the room so that the witnesses can confirm that no one else is there.

Although lock-down restrictions may ease in due course, there are still many people concerned about their health, who would prefer not to meet in person to execute these documents. It is, therefore, a very useful update for many clients and practitioners. 

For more information about the updates to witnessing estate planning documents virtually in Victoria, please read our alert here.

For more information about the importance of getting your affairs and estate planning in order please read our alert here.

How we can help

Due to COVID-19, we understand the execution of formal estate planning documents presents more hurdles. As estate planning experts, we work closely with clients to address and meet their needs. If we can help in any way during this challenging period, please contact Clare Hesbrook and Jana Sosner for further advice.

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