Creating or changing a will or power of attorney during the COVID-19 pandemic


Making or changing your estate plan during the COVID-19 pandemic has just become easier with new laws that allow wills, powers of attorney and enduring guardian appointments to be made by Zoom, Skype, WhatsApp and FaceTime.

Why should you review your estate plan?

We strongly recommend clients review their estate plan as soon as possible after any major life event and every leap year (every 4 years being the rule of thumb and the Olympics year being an easy reminder).

Reviewing your estate plan includes:

  • making or changing a will;
  • establishing testamentary trusts;
  • creating a personal power of attorney which could be used if you were away or unwell;
  • creating an enduring power of attorney which would have effect if you lost capacity;
  • creating a company power of attorney to allow delegates to sign certain documents on behalf of your company without needing two directors to be accessible; and
  • appointing an enduring guardian who could make health decisions on your behalf.

This year marks both a leap year and a once-in-a-lifetime event, but social distancing has created challenges for many people in reviewing their estate plan as, in the past, these documents could only be witnessed in person.

For example:

  • for a will to be valid, it must be signed in the presence of two or more witnesses who are not beneficiaries;
  • a power of attorney must also be witnessed;
  • an enduring power of attorney must be witnessed by a lawyer or other “prescribed witness” who must provide certain advice about the effect of the power of attorney; and
  • an enduring guardian can only be appointed by a form that is witnessed by a lawyer or other “eligible witness” who can attest that the signer executed the form voluntarily and appeared to understand its effect.
What has changed?

The new law does not change the requirement for these documents to be witnessed, but allows the witness to observe the person signing the document via video conferencing.

To witness documents in this way, the witness must see the document being signed in real time (a recorded video will not suffice) and they must be able to see the face as well as the signing hand of the person signing the document.

The witness must then either:

  • sign a counterpart of that document as witness in which case the witness must take steps to satisfy themselves that the copy of the document they have signed is the same as the one being signed by the other party; or
  • arrange for the signatory to scan and email the original signed document to the witness in which case the witness must countersign that document.

The witness must also endorse the document with a statement specifying the method used to witness the signature of the signatory and confirming that the document was witnessed in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017 (as amended by the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020).

For wills, the testator must also observe the two witnesses signing the counterpart or copy document in real time via videoconference.

Usual verification of identity processes (ie seeing the signatory’s passport and drivers licence) and mental capacity assessment requirements will still be carried out as and when necessary.

What should you do?

We recommend taking this opportunity to consider whether you have a will that is effective in ensuring your assets will go where you want them towhether the current circumstances impact your business succession plan and whether you have appropriate protections in place to ensure health and financial decisions can be made on your behalf in the event of you losing capacity.

SWS Lawyers can provide you with an estate planning checklist.  Once you have completed this and provided it to us, we can work with you prepare your estate planning documents and finalise them video conference.