Where there’s a will, there’s a way: How to make a legal will in isolation

The law has always been a very strict taskmaster in prescribing how people should do their wills. Technically, it requires you to be able to read it, comprehend it and sign it in the presence of two witnesses.

Of course, that assumes everyone is able do that. Some people, for various reasons, may have limitations when it comes to complying with the law’s requirements. Some of those limitations may include:

• Impaired sight
• Impaired speech
• Impaired hearing
• Impaired signing
• Impaired capacity
• Unable to read English
• English as a second language
• A combination of more than one of the above

Fortunately, the law is also very responsive and adaptive to accommodating these factors in order to enable a person to make a will. So, for example, if someone can’t read their will, it can be read to them. If someone can’t sign a will, they can either just leave their ‘mark’ on it or someone else can sign it on their behalf.

Enter stage left to throw up another challenge to the law – Covid-19.

It has created some real practical difficulties for people to comply with the legal requirements to make a valid will. Distancing and isolation are the main problems, given that the law requires the person signing a will to do so ‘in the presence’ of two other people. ‘Presence’ usually means in the physical presence of the people who must be able to witness the will-maker’s signature and each other’s signature.

Fortunately, the law continues to be responsive to this novel problem. New South Wales and Victoria have recently passed laws allowing electronic witnessing of wills. This means you don’t actually have to be in the physical presence of the will-maker but can do it e.g. by Skype or Zoom.

The Queensland parliament has now also passed similar laws. In effect, it means you can be in the presence of someone without being in their presence – a ‘Clayton’s Presence’, the presence you have when you don’t have a presence. Now, instead of having the pleasure of the physical presence of your solicitor, you can sit in the comfort of your lounge room, media room or even bedroom and talk with your solicitor. He or she is probably not going to be in the same sort of room (but could be).

Once the talking is over, they will prepare your will, and even your Enduring Power of Attorney, and scan it to you. When you are happy with it, the solicitor will Zoom or Skype you again and go through the signing ceremony. You sign and he or she, along with another witness from their office, will witness, in the sense of watching you sign. They can then actually sign the witnessing section when you send back your signed copy. However, this change has a time limit – it will only apply, currently, from March 1, 2020 until September 30, 2020.

For anyone unable to be ‘present’ with witnesses, this could be an opportunity to get your will done, virtually, and to do it successfully.

Covid-19 had a vexing message. On the one hand, it focused people’s attention, like never before, on the importance of doing these documents. On the other hand, social distancing came into conflict with the traditional rules about signing and witnessing documents which required our physical presence with each other. The law has adapted to meet this demand.

It has also created some potential difficulties. A solicitor needs to be satisfied that a client has the necessary capacity to sign a will. Being in the presence of someone, sitting across the table, is often the most effective way of doing that. In the virtual world, however, that isn’t so easy and solicitors have had to improve their own capacity to assess capacity looking at someone on a screen.

While seeing clients in person, with appropriate distancing procedures, will always be the preferred way of doing these documents, the new virtual way now reduces anyone’s excuse for not doing them. Covid-19 is no longer another excuse. The change to the law has presented an opportunity for the recalcitrant to actually do something without leaving their home.

IMPORTANT LEGAL INFO This article is of a general nature and FYI only, because it doesn’t take into account your financial or legal situation, objectives or needs. That means it’s not financial product or legal advice and shouldn’t be relied upon as if it is. Before making a financial or legal decision, you should work out if the info is appropriate for your situation and get independent, licensed financial services or legal advice.