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


Earlier this year we wrote an article about the new legislation which temporarily allows remote witnessing of documents which would otherwise need to be witnessed in the physical presence of a signatory.  This new law has made creating or changing your estate plan during the COVID-19 pandemic significantly easier, as witnesses may witness documents by audio-visual link.  It was recently announced that this legislation will continue to be in force until 26 March 2021.

What is the new law?

Estate planning documents must usually be witnessed in person in order to be valid, as follows:

  • 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 eff

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) was introduced on 22 April 2020 and temporarily allows for the signing of the above documents to be witnessed electronically via Skype, Zoom, FaceTime or similar audio visual links.

To validly witness documents in this way, certain requirements must be satisfied.  For the full list of such requirements, please read our previous article.

What should you do?

We recommend that you review your estate plan every few years and whenever your personal circumstances change.  SWS Lawyers can provide you with an estate planning checklist to assist you in considering any necessary changes.

Please contact our Estate Planning specialist, Phillip Hewitt, for further information or assistance. Phillip has extensive experience in advising on effective estate planning strategies for family groups and businesses, helping to guide and manage all matters of asset protection and inter-generational wealth management.

This article was co-written by Lawyer, Laura Bain.