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New Audio-Visual Witnessing for Wills and Enduring documents in QLD amid COVID-19

Lawyers around the Sunshine State have been eagerly awaiting the arrival of this regulation, since legislation was passed to address the many legal issues arising amid the pandemic. These are no doubt challenging times for many, and for various reasons.

Queensland Government has now made the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 (‘the Regulation’) under the recently passed COVID-19 Emergency Response Act 2020 (section 9).

Whilst every bit of the detail of this regulation is important, there are four things that I think require special mention:

  1. The application of this new regulation is very specificand in response to COVID-19 and for genuine resulting issues preventing physical presence when signing these documents amid the pandemic.
  2. The regulation refers to a necessary requirement of having a “special witness” when it comes to witnessing certain documents under this regulation. This means that not just anyone can be a witness to these documents to be properly captured under this regulation.
  3. A special witness must provide a certificate setting our particulars required under the Regulation.
  4. This regulation expires on 31 December 2020.

In summary:

  • Part 2 deals with Wills (including altering, revoking or reviving Wills)
  • Part 3 deals with Enduring documents, including Powers of Attorney and Advance Health Directives
  • Part 4 deals with signing and witnessing of all documents via audio-visual link:
    • Division 1 deals with directions to substitute signatories
    • Division 2 sets out requirements for witnessing by audio visual link
    • Division 3 deals with other matters including:
      • Certificates required by special witnesses;
      • When documents become effective;
      • Presumptions;
      • Official and originating versions of documents;
      • Lodgement of documents in land registry
      • Audio-visual recording of signing/witnessing

For Wills

Importantly, when it comes to Wills, the Regulation deals with Wills including a document altering, revoking or reviving a Will.

When it comes to executing a Will and meeting the necessary requirements under the Succession Act 1981 (Qld), Part 2, section 7 of the Regulation states:

A requirement under the Succession Act 1981 or another law for the presence of a witness, signatory, substitute signatory or other person in relation to the making, signing or witnessing of a will is taken to be satisfied if—

(a) the witness, signatory, substitute signatory or other person is present by audio visual link; and

(b) the making, signing or witnessing of the will is carried out in accordance with part 4.

When referring to a “will” this Part 2 of the Regulation it is taken to refer to a document altering, revoking or reviving a Will.

 

For Enduring documents

Enduring documents include Enduring Powers of Attorney but also Advance Health Directives.

For Powers of Attorney, section 10 of the Regulation provides:

(1) A requirement under the Powers of Attorney Act 1998 or another law for the presence of a witness, signatory, substitute signatory or other person in relation to the making, signing or witnessing of an enduring document is taken to be satisfied if—

(a) the witness, signatory, substitute signatory or other person is present by audio visual link; and

(b) the making, signing or witnessing of the enduring document is carried out in accordance with part 4.

(2) A certificate under the Powers of Attorney Act 1998section 44 or 49 stating that a person appeared to have capacity necessary to make an enduring document may be made on the basis of the person making the certificate observing the person by audio visual link.

As special adaption to the pandemic and something that is no doubt very practical in the context of COVID-19, nurse practitioners are permitted under the Regulation to sign the requisite medical certificate of the Advance Health Directives; something normally reserved only for doctors.

 

Part 4 of the Regulation deals with signing and witnessing of these documents by audio-visual link in more detail.

Division 1 sets out requirements where directions are given to substitute signatories. Where a person is directed to sign as the substitute signatory, section 13 states:

13 Persons who may be directed to sign

This section applies in relation to a substitute signatory who—

(a) is directed by a signatory in the signatory’s physical presence to sign a document for the signatory that is to be witnessed by audio visual link; or

(b) is directed by audio visual link to sign a document for a signatory.

(2) The following persons are excluded from signing a document as a substitute signatory—

(a) a person excluded under an Act or other law from signing the document as a signatory;

(b) without limiting paragraph (a)—

(i) for a will—an executor or beneficiary of the will, or a relation of the executor or beneficiary; or

(ii) for an enduring document—the attorney of the principal for the enduring document, or a relation of the attorney; or

(iii) a person witnessing the document.

(3) Also, a person may be directed by audio visual link to sign a document for a signatory only if the person is an Australian legal practitioner or an employee of the public trustee.

(4) In this section—

relation, of a person, see the Powers of Attorney Act 1998schedule 3.

 

14 Signing in physical presence requires special witness

(1) This section applies in relation to a substitute signatory directed by audio visual link to sign a document for a signatory if the substitute signatory is to sign the document in the physical presence of a witness.

(2) The signing of the document by the substitute signatory may be witnessed by only—

(a) a special witness; or

(b) 2 or more witnesses, at least 1 of whom is a special witness.

(3) This section does not—

(a) affect any requirement under an Act or other law about the number of witnesses required or permitted to witness a document; or

(b) authorise or permit a person who is excluded from witnessing a document under an Act or other law to witness the document.

When undertaking the signing, the witness must observe the direction and verify certain aspects of the undertaking.

(2) Each witness for the signing of the document by the substitute signatory must—

(a) observe the signatory direct the substitute signatory to sign the document; and

(b) be satisfied that the substitute signatory is permitted under section 13 to be a substitute signatory for the document; and

(c) take reasonable steps to verify the identity of the signatory; and

(d) be satisfied that the signatory is freely and voluntarily directing the substitute signatory to sign the document.

Section 15 of the Regulation.

 

Division 2 sets out the requirements about witnessing documents by audio visual link. Importantly, the Regulation requires witnesses to be or include a special witness:

(1) A document may be witnessed by audio visual link only if—

(a) the witness is a special witness for the document; or

(b) if there are 2 or more witnesses—at least 1 of the witnesses is a special witness for the document.

(2) This section does not—

(a) affect any requirement under an Act or other law about the number of witnesses required or permitted to witness a document; or

(b) authorise or permit a person who is excluded from witnessing a document under an Act or other law to witness the document.

Section 16 of the Regulation.

 

So, who is a ‘special witness’?

A ‘special witness‘ is defined to include:

(a) an Australian legal practitioner; or

(b) a justice or commissioner for declarations approved by the chief executive under subsection (2); or

(c) a justice or commissioner for declarations—

(i) employed by the law practice that prepared the document; and

(ii) who witnesses documents in the course of that employment; or

(d) a notary public; or

(e) a person mentioned in subsection (3) for the document.

Note—

See sections 14 and 16 for further provision about special witnesses.

(2) The chief executive may approve a justice or commissioner for declarations to be a special witness for this regulation if the chief executive is satisfied the justice or commissioner for declarations is an appropriate person for witnessing documents under this regulation.

(3) For subsection (1)(e), a person is also a special witness for a document if—

(a) for a will or a document altering, revoking or reviving a will—the will or document is prepared by the public trustee and the person is an employee of the public trustee; or

(b) for an enduring document or a document revoking all or part of an enduring document—the enduring document or document is prepared by the public trustee and the person is a justice or commissioner for declarations who is an employee of the public trustee.

Section 5 of the Regulation.

 

A document can only be witnessed by audio-visual link if:

(a) if applicable, the witness observes the signatory direct the substitute signatory to sign the document; and

(b) the audio visual link enables the witness to be satisfied, by the sounds and images made by the link, that the signatory or substitute signatory is signing the document; and

(c) the witness observes the signatory or substitute signatory signing the document in real time; and

(d) the signatory or substitute signatory signs each page of the document; and

(e) the witness is satisfied that the signatory is freely and voluntarily signing the document or directing the substitute signatory to sign the document.

Section 17 of the Regulation.

 

After the document has been signed and witnessed, the regulation sets out various practical steeps to be taken, including which document is the official version of the document (see section 24).

Importantly, the Regulation also requires the special witness to prepare and keep a certificate of the witnessing. The certificate must state:

(a) that the document was signed and witnessed during the relevant period; and

(b) that the document was signed and witnessed in accordance with this regulation; and

(c) the steps the witness took to verify the identity of the signatory; and

(d) if a substitute signatory signed the document—

(i) the identity of the substitute signatory; and

(ii) a description of the direction given by the signatory to the substitute signatory; and

(e) if a substitute signatory was directed by the signatory by audio visual link to sign the document—the grounds on which the witness is satisfied the substitute signatory is permitted under section 13 to be a substitute signatory for the document; and

(f) the process followed for signing and witnessing the document; and

(g) that the special witness is a special witness; and

(h) whether an audio visual recording was made under section 26 of the signing or witnessing of the document; and

(i) any other matters the special witness considers relevant to the signing or witnessing of the document.

Section 21 of the Regulation.

 

Only one certificate is required to be completed (but must be completed by the special witness) and must be kept with the document.

There are indeed very challenging times that require creative and careful thought when attempting to update our laws to provide for proper access to justice (and all that means members of our society).

Whilst these measures have been introduced for a specific and temporary purpose, generally, I am hopeful that these adaptions will encourage innovation and forward thinking as our society adapts to technological change in all facets of life and the law. Who knows where our future will lead us!

You can read the full regulation here.

Written by Michele Davis, Associate, Wilson Lawyers.

2020-05-25T01:04:13+00:00May 25th, 2020|