Following the enactment of the Justice Legislation Amendment (System Enhancement and Other Matters) Act 2021 (Vic) (2021 Act), the Wills Act 1997 and the Powers of Attorney Act 2014 have been amended to allow for Wills and Enduring Powers of Attorneys (EPOA) to be signed and witnessed electronically in Victoria on a permanent and ongoing basis.
In summary:
1. A Will and EPOA can be signed and witnessed electronically. The signature of the will-maker and/or the Principal must be done with the witnesses clearly seeing that the signature is being made.
2. Two witnesses are still required and the usual requirements about appropriate witnesses are still in force. One of the witnesses must be a “special witness”, which is defined as:
- an Australian legal practitioner;
- a justice of the peace; or
- a person who is a member of a prescribed class of person.
3. The witnesses can witness by audio visual link (in addition to being able to do so in person).
4. When witnessing a Will and/or EPOA the witness must sign with the testator and/or Principal clearly seeing the signature of the witness. Additionally, the special witness must be the last person to sign the Will and/or EPOA.
5. The witnesses must ensure the Will and/or EPOA includes a statement that the witnessing was done using an audio visual link in accordance with the remote procedures identified under the respective Acts.
6. To ensure the document is validly executed:
- the special witness must check the Will and/or EPOA to ensure that the remote execution procedure has been complied with;
- there must be a statement and/or certification setting out that the Will and/or EPOA was witnessed in accordance with the remote execution/witnessing procedure;
- it must be specified that the witness is a special witness and detail the type of special witness they are; and
- it must specify whether an audio visual recording was made of the signing or witnessing.
7. The document which has been checked and signed by the special witness in accordance with the legislation is the valid Will and/or EPOA.
8. All these steps must occur on the same day and within Victoria.
9. It is a requirement that the Will and/or the EPOA are transmitted by electronic communication between the will-maker and/or the Principal and witnesses. It is therefore possible for programs such as DocuSign to be used to sign the documents during, for example, a Zoom, Skype or Microsoft Teams conference.
10. A recording of the execution can only be made if 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.
The new requirement for a special witness, being someone within a limited category group, shows the importance of having someone with knowledge of the complexities and difficult circumstances that the will maker or Principal may be facing when undertaking their estate planning.
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 NSW, 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 Ilana Kacev for further advice.