Estate Planning is the bread and butter of many small law firms. Wills, powers of attorney, guardianships and medical directives are important documents that require proper execution. Without the necessary witnessing and execution requirements met, it is easy to contest these documents when they come into effect.
With many small law firms transitioning to work from home and social distancing being enforced, how can lawyers make sure that Wills are witnessed correctly?
As we know, the law often lags behind big changes in society. As the Law in all Australian States still stands, a Will can only be properly executed by the Will-maker in the physical presence of two adult witnesses who can affix their written signatures to the documents.
There is currently no provision in any legislation or case law that would support the electronic execution of a Will for a grant of Probate. However, there have been cases where an electronic document has served as the clear testamentary intention of the deceased in applications for Letters of Administration.
As many people are self-isolating, they are not in positions to correctly execute their Wills. However, as this is a time when many people are approaching law firms to ensure their affairs are in order, lawyers will need to get creative with how they use technology.
Whilst an improperly executed Will cannot be granted Probate, a improperly executed Will may be sufficient proof of the Will-maker’s testamentary intention for a grant of Letters of Administration. See relevant case law: Nichol v Nichol  QSC; Re Estate Wai Fun Chan, Deceased  NSWSC 1107; Re: Yu  QSC 322.
It should also be mentioned that the NSW legislature introduced the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) on 24 March 2020. The act indicates that considering the current pandemic, the strict witnessing requirements under the Succession Act 2006 (NSW) will be reviewed for the purposes of witnessing and executing Wills. It would seem likely that the other States would follow suit over the next few weeks and we will update this article with any further guidance and requirements issued by the relevant regulatory bodies.
See below our step-by-step guide to ensure that you can easily draft, send, sign and witness a Will using Smokeball – keeping in mind that this may only satisfy the Court of the Will-maker’s testamentary intention – and where possible, correct witnessing procedure should be adhered to:
- Ensure that you are using an online video conferencing service, when consulting with your clients to prepare their Will. Zoom is an excellent video conferencing software that you can easily utilise in place of face-to-face conferences with your clients. (It may be good practice for Lawyers to record their video conferences, if further evidence of client instructions are required.)
- Explain to the client that if they are unable to attend your office or sign the document in the physical presence of two witnesses, the Will may not be enforceable in the event of their untimely death. This is absolutely imperative, to avoid liability issues. It is best to ensure that you have recorded the client’s written and verbal understanding that the work you are engaged in may not be legally enforceable for a grant of Probate.
- The steps below should be used to capture the Will-maker’s testamentary intention, with a clear understanding that proper execution should be attended to as soon as the situation allows.
- Open your Will matter in Smokeball, adding in your client, executors, substitute executors and other relevant parties.
- Save all file notes, documents, photos and correspondence related to your client conference to your Smokeball matter, ensuring that all relevant information is stored in one place.
- Ensure that you complete a Verification of Identity for your client using Smokeball’s integration with InfoTrack’s WebVOI or IDfy services. The Verification of Identity can be completed entirely online by the client and gives you peace of mind that the person you are dealing with is who they say they are.
- This is a crucial step to avoid any liability issues that might arise, as it verifies that the person you are dealing with is not engaged in fraudulent activity.
- Use our custom Will precedent in Smokeball and watch as all relevant parties are automated in this easy-to-use form. No more double data entry – just tweak the document and add in any relevant clauses specific to your client’s needs.
- If the client has a printer, you can send the Will to your client using Smokeball’s secure document sharing service, Communicate. You no longer need to worry about your documents being intercepted by hackers and cyber-criminals – sending sensitive documents via Communicate ensures that your documents get to the right place with ease of mind. (If the client does not have a printer, you must ensure that a printed copy of the Will is sent by registered mail to the client’s home address.)
- Ensure that you book in a time for a video conference with your client to execute and witness their Will. You will need two witnesses and the Will-maker to sign the document at the same time. Zoom makes this easy – as you can video conference with as many people as you need to witness and execute the document. The video conference should also be recorded using Zoom, as the Court may need further evidence that the document was signed by the client.
- The client should ensure that their phone camera or computer webcam is set up to clearly capture their attestation on each page of the Will. They should also make clear on the last page of the will, near their signature that they are aware that whilst the Will is not correctly executed pursuant to the State’s relevant legislation, the information in this document comprises their testamentary intention. An explanation should also be given, that proper attestation was not possible due to the Coronavirus epidemic, as the Courts may be more lenient considering the current situation.
- Once the client has signed their Will, they should immediately scan or take photos of each individual page and send to their Solicitor via Communicate to provide a safe and secure electronic copy of their signed document. The client will then always be able to access the documents that they have sent in the Communicate mobile phone app or web-browser.
- The Will should then be returned to the Solicitor via registered mail and the signature of the two witnesses who attended the Zoom conference affixed to the document as soon as possible. A scanned copy of this should then be sent to the client via Communicate, with both written and visual confirmation provided by the Client that the document received by the Solicitor is the same document that the Client has indicated is their Will.
- The Will should then be stored in safe custody or a similarly secure physical environment in the Solicitor’s home office space.
- With all correspondence, videos and photographs saved to the Smokeball matter, should any issues arise with the execution of the Will, you will be able to clearly provide evidence that the document in question was the Will-maker’s testamentary intention at the time that they made the Will.
- Of course, as soon as is practicable, proper execution and witnessing should be attended to, so as to avoid any complications in the Courts.
Please refer to your State’s relevant legislation, case law and Law Society for further guidance on any of the above.
If you need assistance with using Smokeball to transition to a remote office, please get in contact by calling 1300 33 55 53 or emailing email@example.com. Our friendly support team are here to help!