In our experience, one of the most common situations that prompts someone to make a Will is a health crisis. We are in the midst of one of the most significant health events in history and, as expected, this has caused many to think about their estate and end of life planning.
A challenge is that Wills now need to be made in the midst of isolation and social distancing measures, and at a time where face-to-face contact is actively discouraged, potentially illegal and could have serious health consequences.
So, how do you comply with the requirement that a valid Will must be signed by the Will maker in the presence of two witnesses?
Download our state-by-state guide.
Who can be a witness?
The first thing to know is who you are legally allowed to have as a witness to your Will. Many people don’t realise that incorrectly signed and witnessed Wills are some of the most common reasons that a Will is deemed to be invalid.
In Victoria, South Australia, Western Australia and the ACT, any adult can act as a witness to a Will. This means that a spouse or adult child of the Will maker can act as a witness, even if they are named as beneficiaries in the Will.
However, in Queensland, the Northern Territory, New South Wales and Tasmania, a witness cannot also be a beneficiary of the Will (subject to some exceptions). This is commonly referred to as “the interested witness rule”. This makes it much more difficult for Will makers to create a valid Will, and is where social distancing rules become relevant.
How do I go about getting my Will signed?
If you’ve worked with a lawyer to create your Will (which we strongly recommend doing), then you have some options. Given strict requirements for signing Wills, ideally your Will would be signed in the presence of your lawyer and another witness so that it is validly executed.
Given the social distancing and isolation rules, a face-to-face meeting with your lawyer for signing is unlikely to occur, at least in the short-to-medium term. One option is that the original Will can be posted or emailed to you so that the you can arrange your own witnessing. This is not an ideal scenario and brings with it the risk that those strict signing requirements won’t be complied with.
An alternative solution is that the Will be signed by the Will-maker in the absence of witnesses and then signed properly at a later date when social distancing ceases. While a Will made in these circumstances is technically invalid, in most jurisdictions it is possible for the Court to deem it to be valid in certain circumstances after death. There is, however, the risk that the Court will refuse to validate the Will.
Since anyone can witness your Will in Victoria, South Australia, Western Australia and the ACT, as long as you’ve got two adults in your household, the first option of signing it (and having it witnessed) in your own home is possible. In South Australia, there’s a generous ten-person gathering limit so safely finding two witnesses should be possible.
If you’re in New South Wales, Queensland, the Northern Territory or Tasmania and you’re sharing a house with two other adults who aren’t named as beneficiaries in your Will, then you should be able to legally and validly have your Will witnessed.
If not sharing a house with non-beneficiaries in these states and territories, there may be other options. In Queensland, New South Wales and the ACT, social distancing rules allow for a household to have two guests at any given time. Therefore as long as your two guests are not named in your Will as beneficiaries, and you maintain your 1.5m safe distance, they should be able to witness you signing your Will in your own home.
In the Northern Territory, there is a 10-person gathering limit similar to South Australia, which makes the signing of a Will much easier, but again, you will just need to ensure that the two witnesses are not beneficiaries in the Will.
In Tasmania, the rules are more stringent. While two guests are allowed to visit you, they can only do so for one of the specific purposes allowed by the social distancing regime, such as to provide compassionate care or to drop off essential supplies.
Queensland and New South Wales have introduced temporary measures that allow for Wills to be signed and witnessed by video conferencing technology during the pandemic crisis.
The initiative gives Will-makers another option for getting their Wills witnessed, while still following the rules of the social distancing regime.
Witnessing options outside the home
Despite the difficulties created by the interested witness rules, there are some other possibilities. For those still attending a work place, you could ask two work colleagues to be your witnesses.
You could also arrange for your Will to be signed and witnessed while undertaking one of the allowable activities outside the home, such as attending a medical appointment. If you’re in Tasmania and visiting someone else primarily for the purposes of allowable social distancing activities, you could take your Will with you. Always use your common sense, and make sure you’re not putting yourself or others at risk of breaking the law or spreading disease.
Ultimately, you should opt for the solution that offers the best chance of the Will being held valid. This will save the cost and uncertainty of someone trying to prove an invalid Will after your death.
If you cannot find a way to have your Will witnessed, you should still proceed and sign it, making it clear that you intend it to be your last Will, even though it is not witnessed, and then ensure it is signed and witnessed correctly as soon as it is possible to do so.
To summarise the above information, we've created a state-by-state guide you can download.
If you haven't started making your Will, our online Wills service, MyLife Wills® only takes about 30 minutes and you can get started from the comfort of your own home. There's never been a more important time to get your estate sorted.