Legislators simplify will-making process in the wake of COVID-19

James ConomosFounder and Principal Partner, James Conomos Lawyers

Last week the Queensland Government passed legislation in an effort to allow wills and enduring power of attorney’s to be witnessed via video conference.

Pursuant to regulation 9 of the COVID-19 Emergency Response Bill 2020 (Qld), the Government is entitled to make regulations where an Act permits or requires the signing or witnessing of a document. This regulation making power affords the making of “modified requirements or arrangements”. In effect, the legislation allows the Court to dispense of the formal witnessing requirements and determine whether an informally made will is valid.

The move follows a Practice Direction issued by the Queensland Supreme Court on the same day which allows applications for informal wills to be heard by a Registrar rather than a judge.

Specifically, the Direction grants a Registrar power to constitute the Supreme Court and hear and decide application under section 18(2) of the Succession  Act 1981 (Qld). In doing so it dispenses the requirement for a party be in the physical presence of the testator, provided the Registrar is satisfied that:

  1. A solicitor drafted, witnessed or supervised the will’s execution;
  2. The deceased intended for the document to take immediate effect;
  3. The testator executed the will in the presence of one or two witnesses via video conference;
  4. The witnesses were able to identify the documents executed; and
  5. The reason the testator was unable to execute the will in person arose from complications relating to the COVID-19 pandemic.

The direction was issued in accordance with Rule 452(2) of the Uniform Civil Procedure Rules 1999 (Qld) and applies only to documents executed between 1 March 2020 and 30 September 2020.

Queensland is not alone in embracing technology, with a number of other jurisdictions also introducing modifications to the will-making process. In New South Wales, temporary regulations made under section 17 of the Electronic Transactions Act 2000 (NSW) facilitate witnessing via video conferencing, while across the ditch the Epidemic Preparedness (Wills Act 2007 – Signing and Witnessing of Wills) Immediate Modification Order 2020 alters section 11 of the Wills Act 2007 to permit the use of audio-visual links.