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Tony, Michael and David Partners at ABKJ
ABKJ Lawyers

Remote witnessing of wills and other documents

The Queensland Government recently passed the Justice Legislation (COVID-19 Emergency Response – Document and Oaths) Regulation 2020.  The purpose of the legislation is to address the issue of physically witnessing and signing documents amidst the social distancing restrictions that are currently in place as a result of the COVID-19 pandemic.

The Regulation introduces a number of provisions that allow for the signing or witnessing of documents to be made through an ‘audio visual link’, when such signing or witnessing would traditionally have been made in the physical presence of relevant people. An audio visual link is defined as a continuous and contemporaneous audio and visual communication between persons at different places (such as videoconferencing). The documents addressed by the Regulation can include wills, affidavits, enduring documents and declarations. The Regulation can apply to all documents executed prior to 31 December 2020.

Requirements under the Regulation

The Regulation (under Part 4) outlines a number of requirements for the signing or witnessing of documents by audio visual link. For example, a document may only be witnessed by audio visual link if the witness is a special witness (such as an Australian lawyer, Justice of the Peace or a Notary Public). If there are two or more witnesses, at least one of the witnesses must be a special witness. A person who witnesses a document by audio visual link must also take reasonable steps to verify the identity of the signatory, and that the name of the signatory matches their name as written on or in the document.

There are also a number of general requirements for witnessing documents. Under the Regulation, a document may be witnessed by audio visual link only if:

  • The witness is satisfied that the signatory is signing the document based on the sounds and images made by the audio visual link; and
  • The witness can make this determination in real time; and
  • The signatory signs each page of the document; and
  • The witness is satisfied that the signatory is freely and voluntarily signing the document or directing a substitute signatory to sign the document.

Under the Regulation, a person who witnesses a document by audio visual link may confirm a document as the document witnessed only if satisfied that the document is signed by the signatory and is a true copy of the signed document. The person must confirm the document as soon as practicable after witnessing it (which may or may not be on the same day as witnessing the document) and by signing each page of the document.

For special witnesses who have witnessed a document signing via audio visual link, that special witness must sign and produce a certificate that states the document was signed and witnessed during the relevant period and in accordance with the Regulation. The certificate must also state:

  • That the witness verified the identity of the signatory or substitute signatory;
  • That the special witness is a special witness;
  • The process followed for the signing and witnessing of the document;
  • Whether an audio visual recording was made of the signing or witnessing of the document; and
  • Any other matters the special witness considers relevant.

Remote Witnessing – Wills

In relation to wills specifically, the Regulation states that the requirement for the presence of a witness, signatory or substitute signatory is taken to be satisfied if the witness, signatory, substitute signatory or other person is present by audio visual link, and the making, signing or witnessing of the will is carried out in accordance with Part 4 of the Regulation (as outlined above). Importantly, the Regulation states that witnesses are required to know that the document being attested and signed is in fact a will.

In addition to the Regulation, the Supreme Court of Queensland published Practice Direction Number 10 of 2020 on 22 April 2020, which also relates to remote witnessing of wills. The Practice Direction allows a Registrar of the Court to hear and decide Applications under section 18(2) of the Succession Act 1981. This section of the Act relates to the execution of documents that can change, revoke or become part of a will of a deceased person if the Court is satisfied that the deceased person intended that document to have that purpose. Traditionally, the Act requires a party to physically be in the presence of the testator when executing such documents. However, this Practice Direction allows a Registrar to dispense with this requirement, provided the Registrar is satisfied that:

  1. The will was drafted by a solicitor, or a solicitor is one of the witnesses to the will, or the person supervising the execution of the will;
  2. The deceased intended the document to take immediate effect as their will, alteration to their will, or full or partial revocation of their will;
  3. The testator executed the document in the presence of one or two witnesses being in the presence of the testator by way of video conference but not physically;
  4. The witness or witnesses were able to identify the document executed; and
  5. The testator was unable to execute the will in the physical presence of two witnesses due to complications arising from the COVID-19 pandemic.

The Practice Direction can apply to any wills executed between 1 March 2020 and 30 September 2020.

What does this mean?

These temporary measures provide options for the remote witnessing of wills and other documents whilst strict social distancing measures are imposed during the Covid-19 pandemic.

However, due to the layer of complexity that adopting these measures impose, unless parties have particular health or other concerns, it is recommended that in-person witnessing continue to take place whenever possible.

Do you have questions?

Please contact the solicitors at ABKJ Lawyers if you have any queries about any aspects of this update. You can get in contact by email at ak@abkj.com.au or phone the Southport office on 07 5532 3199.

For further help, read our articles on Wills & Estate Law: