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:
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 firstname.lastname@example.org. Our friendly support team are here to help!