COVID-19 Safe Solutions for witnessing Wills + other key documents in Australia

20/10/2020

Estate Planning

COVID-19 Safe Solutions for witnessing Wills + other key documents in Australia

Witnessing requirements for the creation of a valid Will in Australia as well as many legal documents across the board, have become a public health issue under COVID-19. It is generally not possible (on account of physical constraints) to have witnesses attest and sign a Will whilst observing social distancing. In this article we: ➲ Provide a warning about what could go wrong! ➲ Strongly recommend practical alternatives such as “Will through a window!” if witnesses can witness in a COVID-Safe manner, and ➲ Broadly outline the current Australian legislative response temporarily enabling remote AVL witnessing in some jurisdictions.

Contents

Warning: Only use Remote Audio-Visual Link (AVL) as a last resort!
What is Legal Capacity?
Textbook Scenario “Raising Red Flags”
Summary of the Australian COVID-19 Emergency Legislative Response as of 14 October 2020
Australia-wide [Federal]
ACT [Australian Capital Territory]
NSW [New South Wales]
NT [Northern Territory]
QLD [Queensland]
SA [South Australia]
Tas [Tasmania]
VIC [Victoria]
WA [Western Australia]
More Detailed Information

Warning: Only use Remote Audio-Visual Link (AVL) as a last resort!

On the surface, remote AVL witnessing might appear to be a modern, convenient + temporarily (due to COVID-19) “government-approved” legally reliable solution which also represents an opportunity for better customer service.

Please consider: If remote (AVL) has only been made legal now as an emergency COVID-19 response by some Australian jurisdictions:

1️⃣  Why have some, and not all jurisdictions legislated approval to use this method? and

2️⃣  Why is the change temporary, not permanent?

There are fundamental reasons (refer discussion below) for Australian lawmakers not legislating to approve remote (AVL) witnessing.

In an abundance of caution, we provide the following warning:

“Witnessing a Will or any important/high-value legal documents via remote AVL should only be used as a last resort.”

First, ask. Are there any practical alternatives?

We recommend before you consider remote AVL witnessing, you ask whether there are any practical alternatives such as the following:

➲ “Window-signing” involves witnessing the signature is from the safety of the other side of a full-height “floor to ceiling” glass door/panel/window, or car window where it is plain to the witness or witnesses that there is no other person in or near the vehicle.

➲ Can the witnessing be delayed until after the immediate COVID-19 threat has subsided? Then proceed with all appropriate COVID-19 safety precautions.

There is no other option. It is legal. What could go wrong?

Remote AVL witnessing has the potential to create more problems than it solves!

As just one example, a family member or trusted carer could use remote AVL witnessing as an enabling technology to perpetrate Elder abuse.

“Elder abuse is a real + growing issue.

More than one million Australians are forecast to have dementia by 2056. [1]

Stealing from a stranger has criminal consequences.

When a family member or trusted carer obtains a personal financial benefit by pressuring ^ an elderly person into signing a Will or other legal document such as an Enduring Power of Attorney it is not currently a chargeable criminal offence.”

— James D. Ford | Principal Solicitor, Blue Ocean Law Group℠

Look at all of the facts + circumstances

“In certain situations we do not recommend the use of remote AVL witnessing, even as a last resort!”
Some factors to consider include the following (non-exhaustive list):

➲ The witness does not know the person signing or the person proving instructions;

➲ The person signing is not providing the instructions;

➲ There is an unexplained or unconvincing requirement for urgency. There is no pending transaction or medical/health issue, Etc.;

➲ The person signing used to have a lawyer (but now does not);

➲ There will be a significant change in the status quo without adequate explanation; or

➲ There is a hint of a possibility of lack of legal capacity*duress^ or undue influence**.

What is Legal Capacity?

* According to the NSW Capacity Toolkit: Legal capacity has four parts:

1️⃣  A person who has capacity is able to make decisions about things that affect their daily life, such as: where to live, what to buy, what support or services they need, when to go to the doctor, and matters that have legal consequences (which require legal capacity), including: making a Will, getting married, entering into a contract, having medical treatment.

Broadly speaking, when a person has capacity to make a particular decision, they are able to do all of the following:
  • understand the facts involved;
  • understand the main choices;
  • weigh up the consequences of the choices;
  • understand how the consequences affect them; and
  • communicate their decision.”

2️⃣  Capacity is decision specific. The level of capacity required for each decision needs to be assessed each time a decision is made.

3️⃣  What can affect a person's capacity?

Capacity varies from person to person and from situation to situation. Capacity is not something solid that you can hold and measure. Neither is it something that is the same all the time. It is affected by a person's abilities and by what's happening around them.

4️⃣  Capacity can be regained.

A person can regain capacity or increase their capacity. For example, they can regain consciousness or learn new skills that will enable them to make certain decisions for themselves.

Free Resource:
To learn more about decision-making + capacity within NSW (the principles learned would have Australia-wide relevance) here is a link to an (approx. 30 minute) interactive E-learning online course provided by the NSW Government.

What is Duress or Undue Influence?

^ Duress is wrongful pressure exerted upon a person to coerce that person into signing a document/contract that he or she ordinarily wouldn’t sign.

** Undue Influence is an act of controlling another person, due to a dominant position or relationship.

Textbook Scenario “Raising Red Flags”

An overly helpful relative or support person is providing all of the instructions regarding the Will or other key document. There is an urgent change (where there is no apparent reason for urgency) whereby the person instructing will personally benefit as a result or gain control over the estate or ongoing affairs of the person signing (representing a conflict of interest). If you are requested to be a witness

in such a scenario, we recommend that you look for any sign of textbook or other red flags + raise questions regarding the person’s mental capacity and the potential for duress or undue influence.

What could be happening “Off-Screen”?

Whilst a witness can see the face of the person signing, it is challenging to see everything. 

The example typically provided is that:

“Somebody could point a gun at the person signing from off-screen, and the remote witness would not be aware of this as their vision is limited to the screen captured by the camera”.

It could also be hard for the witness to form an impression of what is happening or being said in the background at the remote location due to actual/accidental/deliberate technical issues causing muting of the audio or making it difficult to hear the audio/voice.

Summary of the Australian COVID-19 Emergency Legislative Response as of 14 October 2020

In light of NSW’s recent extension of remote witnessing provisions by Audio-Visual Link (AVL) to 31 December 2021, here is a summary of the responses of the majority of Australian States + Territories.

In addition, the NSW Law Society has recently published a guide called “Implications of the electronic witnessing provisions”, and a related FAQs document.

Australia-wide [Federal]

Corporations Act 2001 (Cth)

✅ Permits AVL -> split execution is expressly permitted.

A company may also execute a document (including an electronic document) under section 127(1) of the Corporations Act 2001 (Cth) if each company signatory either:

➲ Signs a copy or counterpart of the document in physical form; or

➲ Uses electronic communication which reliably identifies the person and indicates their intention about the contents of the document;

➲ The physical or electronic communication must include the entire contents of the document but does not need to have the physical or electronic signature of another person;

➲ The assumptions in section 129(5) of the Corporations Act apply to a document signed following this modified method.

⌛️ Temporary measures are applying from 6 May 2020 to 21 March 2021 (inclusive).

ACT [Australian Capital Territory]

s. 4 COVID-19 Emergency Response Act 2020

✅ Permits AVL

⌛️ Temporary measure expires three months after the end of any COVID-19 Emergency Period.

⌛️ The ACT Government declared a COVID-19 Emergency Period on 16 March 2020.

⌛️ On 16 February 2021, the ACT Government declared an extension to the COVID-19 Emergency Period until 17 May 2021.

⌛️ Therefore, as it stands, the AVL provision in the ACT are valid until around 17 August 2021. However, the Minister for Health may declare further extensions to the COVID-19 Emergency Period.

NSW [New South Wales]

(COVID-19 Witnessing of Documents) Regulation 2020 under s. 14G Electronic Transactions Act 2000

✅ Permits AVL

⌛️ As per s 14K of the Electronic Transactions Act 2000, the temporary measure expires 1 January 2022.

⌛️ It is unlikely that NSW will extend the duration for which AVL witnessing can be used as Part 4 of the Electronic Transactions Act 2000, the power to make altered arrangements during COVID-19, was expired on 26 March 2021.

NT [Northern Territory]

❌ No temporary measure.

QLD [Queensland]

s. 7 Justice Legislation (COVID-19 Emergency Response - Wills and Enduring Documents) Regulation 2020

✅ Permits AVL

⌛️ Temporary measure expires on COVID-19 Legislation Expiry Day - currently, as per s 4A COVID-19 Emergency Response Act 2000, the COVID-19 Legislation Expiry Day is 30 April 2021.

⌛️ However, there is currently an amendment bill tabled with the Queensland parliament to extend the COVID-19 Legislation Expiry Day to 30 September 2021.

SA [South Australia]

❌ No temporary AVL measure.

✅ Not strictly concerning1 attestation of Wills, but an extension of the classes of persons who may witness statutory declarations.

Tas [Tasmania]

Notice under s. 17 of COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020

✅ Permits AVL

⌛️ Temporary measure expires 17 June 2021 or 60 days after the end of the COVID-19 Emergency.

VIC [Victoria]

s. 41 COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020

✅ Permits AVL

⌛️ Temporary measure valid until revoked.

WA [Western Australia]

❌ No temporary measure.

More Detailed Information

If you need more detailed information regarding the Australian COVID-19 legislative response regarding the execution of documents we recommend you refer to this Practical Law Guide.

Footnotes:

[1] Elder Abuse—A National Legal Response (ALRC Report 131) Last modified on 14 June, 2017.

Credits:

This article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Thanks to Suk Jae Chung | Virtual Intern, Blue Ocean Law Group℠ for his assistance with the intro + Summary of the current Australian legislative response.

Cover Image Credit:

Photo by Devin H via Unsplash

Important Notice:

This article is intended for general interest and information only. It is not legal advice and nor should it be relied upon or used as such. Always consult a lawyer for specialist advice specific to your needs and circumstances.