COVID-19: Safely making Wills & EPAs during lockdown

Thursday July 30, 2020

COVID-19:  Safely making Wills & EPAs during lockdown

Despite the coronavirus pandemic confining most of us to our homes, there is no need to put off making arrangements about what is to happen to our assets when we die, or who is to make important decisions on our behalf if we lose the capacity to do so.

The Wills and Estates team at Hicks Oakley Chessell Williams (HOCW) are continuing to assist clients with all aspects of estate and succession planning during lockdown 2.0. This includes the preparation of:

  • Wills (including Testamentary Trusts); and
  • Appointments of Powers of Attorney (Personal and Financial), Supportive Attorney Appointments, and Appointments of Medical Treatment Decision Makers; and
  • Review of related estate planning matters, including death benefit nominations for superannuation funds.

These documents are important for the following reasons:

  • If you do not have a Will your assets will not be distributed according to your wishes when you die, but rather according to legislation; and
  • If you have not made an Enduring Power of Attorney and you lose capacity, no one will be in a position to make decisions about your financial and personal affairs unless an application is made to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of a guardian or administrator.

There are challenges in meeting the formal requirements for making these documents, but it is now more important than ever to make these arrangements with a solicitor to ensure that you obtain proper advice and make valid documents.

We have adapted our practices in a bid to ensure clients can both give instructions relating to and sign their Wills and Enduring Powers of Attorney safely in the current environment.

Instruction and execution  

Meeting clients to take Will and Enduring Power Attorney instructions, where safe and possible to do so, is considered best practice, according to the Law Institute of Victoria.  The reasons for this include that it is easier to assess capacity of a client, and whether they are acting under duress and undue influence, during a face to face meeting.

However, as a result of soon to be introduced further restrictions in Victoria, the HOCW Wills and Estates team are unable to take in-person meetings with clients.

We are available to take instructions by phone or audio visual link and will make recommendations about also recording instructions in writing.

Until recently, strict requirements applied to the witnessing of Wills and Enduring Powers of Attorney which necessitated a face-to-face meeting. For instance, according to legislation:

  • A Will must be signed by the Will maker before two adult witnesses and who sign the Will in the presence of the Will maker and one another (s 7, Wills Act 1997).
  • An Enduring Power of Attorney must be signed by the person making the document ('the Principal') before two people who witness the Principal sign the document, and who are then required to sign the document with the Principal (and with one another) and certify that the Principal freely made the document (s 34, Powers of Attorney Act 2014). There are various requirements about the qualification of the witnesses and their relationship to the Principal and attorney appointed under the documents.

However, these documents can now be temporarily signed and witnessed remotely pursuant to new regulations which are in force until 24 October 2020. The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic), which came into effect on 12 May 2020, were introduced in the wake of the coronavirus pandemic.  They allow certain documents to be signed and witnessed via audio visual link, which means for example that a Will can be signed and witnessed without the testator and two witnesses being in the same room but instead via an electronic process.

'Home made' Wills

It is always risky to make a Will yourself at home.   Although there are provisions which allow a Court to admit a Will to probate which has not been made or signed in accordance with the proper formalities requiring two witnesses, this can be a lengthy and costly process.

We understand in some cases there may be increased urgency around the making of a Will.  The Wills and Estates team are available to advise on the best way to ensure compliance with the requisite formalities for making these documents, and to tailor arrangements to our clients' circumstances.

Contact our Wills and Estates team on 03 9550 4600 for assistance with making or updating your Will.

Co-authored by Natalie Talia, Senior Associate and Kate Williams, Lawyer.

Click here to read our Special Bulletin - Coronavirus (COVID-19).