Many people have been understandably concerned about making their wills and other important documents during the pandemic, especially when these documents require signing in someone’s presence. Something seemingly easy to do, comes with significant struggles in the current climate.

We have been tracking the movements in the legal industry and government as to how our Sunshine State is going to address these issues in the times ahead. We are pleased to see a few steps being taken to attempt to deal with these issues, one of which is the Chief Justice issuing guidance on what Court’s may accept as an “informal Will” amid the COVID-19 pandemic.

An informal Will can be a document that whilst it doesn’t meet the formal requirements to make it a valid Will under our current laws, it can be upheld as an ‘informal Will’ if a Court says so. The biggest requirement is that a person signing Will must sign it in the presence of two witnesses; and this requires physical presence.

Guidance from the Court

The Chief Justice of our Supreme Court has provided a practice direction allowing for the Court to approve informal Wills where they have not been signed in the physical presence of two witnesses as a result of COVID-19. This allowance will only apply in certain circumstances and only to Wills executed between 1 March 2020 and 30 September 2020. A few of the requirements for this to apply includes providing evidence sufficient to show:

  1. The Will was drafted by a solicitor, or a solicitor was one of the witnesses, or supervised execution of the Will.
  2. It was the intention of the testator that the executed document would immediately become a Will, alter a Will, or fully or partially revoke a Will.
  3. The document was executed by the testator:
    • In the presence of two witness through video conference; or
    • In the presence of one witness through video conference.
  4. The witnesses could adequately identify the executed Will.
  5. The reason why the Will was unable to be executed in the physical presence of two witnesses was due to either government enforced or recommended, or self-imposed, isolation or quarantine because of the COVID 19 pandemic.

What does this mean?

The witnessing requirements are reduced to allow informal Wills to be created or Wills to be updated through informal means whilst social distancing requirements are in place. Whilst evidence is required to the satisfaction of the registrar (as outlined above), Wills can be valid if executed in the presence of one or two witness through video conference.

If you are thinking of creating or updating your Will, we are still operating and here to help you. We have video conferencing meetings available for those that cannot or wish not to attend our office.

Important Notice: The information in this article is current as at 24 April 2020. It is for general purposes only and reflects a rapidly changing situation. Consequently, this article is not intended to constitute legal advice.

If you require assistance any assistance with your legal matters, please contact us on 07 3392 0099.

Written by Sam Rose, Graduate and Michele Davis, Associate, Wilson Lawyers.