Remote signing and witnessing of estate planning documents

Friday June 25, 2021

Remote signing and witnessing of estate planning documents

Unpleasant as they may be, any future coronavirus-related lockdowns should not hinder the execution of important estate planning documents thanks to recently introduced laws that permanently allow the remote witnessing and signing of Wills and Enduring Powers of Attorney.

The new laws, which aim to modernise the way Wills and Enduring Powers of Attorney are executed, allow those documents to be signed and witnessed via audio visual link rather than in person.

How were Wills and Enduring Powers of Attorney executed in the past?

Traditionally strict requirements applied to the witnessing of Wills and Enduring Powers of Attorney which necessitated face-to-face meetings. For example, Wills were required to be signed by the Will-maker before two adult witnesses who signed the Will in the presence of the Will-maker and one another. These requirements aimed to ensure that the person making the Will or Enduring Power of Attorney had the capacity to do so and was not under duress or undue influence.

However, the lockdowns associated with the coronavirus pandemic in 2020 made signing and witnessing Wills and Enduring Powers of Attorney in this way difficult.  A stopgap measure was introduced last year to permit the witnessing and signing of these documents via audio visual link pursuant to the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic).

What about now?

These temporary measures are now permanent thanks to the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) which amended the Wills Act 1997 and Powers of Attorney Act 2014 and came into effect at the end of April 2021. 

The new measures still require that the Will or Enduring Power of Attorney be executed in the presence of the witness(es) to the relevant documents, but this can now occur virtually rather than in person.

The requirements that apply to the remote witnessing of Wills include the following:

  1. the Will-maker and witnesses are in Victoria;
  2. the remote witnessing procedure occurs on the same day;
  3. one of the witnesses is a special witness. Special witnesses include lawyers and justices of the peace;
  4. the special witness is the last person to sign the document.

The witnesses must see the Will being signed by the Will-maker and ensure that the Will-maker can see them signing the Will.

Similar requirements apply to the signing and witnessing of Enduring Powers of Attorney. For example, these documents must also be witnessed by a special witness.

Despite the remote witnessing laws, it remains best practice for Wills and Enduring Powers of Attorney to be executed in person because it is more difficult for a legal practitioner to assess if a Will-maker has testamentary capacity or is under duress via audio visual link.

The remote witnessing procedure does not apply to all estate planning documents. For example, it does not apply to the execution of international Wills. Appointments of medical treatment decision makers and advanced care directives must be signed and witnessed during a face-to-face meeting.

Why is estate planning important?

Having an estate plan could help you avoid the following:

  • your assets not being distributed according to your wishes when you die but rather according to legislation because you do not have a Will; and
  • having your loved ones apply to the Victorian Civil and Administrative Tribunal (VCAT) for a guardian and/or administrator to be appointed to act on your behalf because you have lost decision making capacity and you do not have an Enduring Power of Attorney. 

Contact our Wills and Estates team on 9550 4600 for assistance making your Will and Enduring Power of Attorney.