In our recent post of 17 April 2020, we highlighted the requirements to be followed for a Will to be validly executed.
Those requirements, in particular, include the need for the Willmaker to be physically in the presence of two (2) independent witnesses.
This requirement creates difficulties in the current COVID-19 environment.
Recognising this, the Chief Justice of the Supreme Court of Queensland yesterday issued a direction slightly relaxing the need for two (2) independent witnesses to be physically present and allowing for witnesses to be present by video conference.
There are, however, some key points to note as the relaxation will only apply in limited circumstances.
- The direction applies only to Wills executed between 1 March 2020 and 30 September 2020;
- The Will needs to have been drafted by a Solicitor or a Solicitor needs to be one of the witnesses to the Will;
- The Willmaker must intend the document to take immediate effect as their Will;
- The Willmaker must execute the document: a) in the presence of two (2) witnesses which can be by way of video conference (and not physically); or b) in the physical presence of one (1) witness and the presence of the other witness by way of video conference.
- The witnesses need to be able to identify the document executed.
- The reason why the Willmaker was unable to execute the Will in the physical presence of two (2) witnesses must be because of either government-enforced or recommended, or self-imposed isolation arising from the COVID-19 pandemic.
After the death of the Willmaker, it will still be necessary for an Application to be made to the Registrar of the Supreme Court to satisfy the Court that the Will was executed following the above steps.
COVID-19 can’t be used as a blanket excuse or justification for not observing the requirements of execution.
It’s most important you do not act without seeking our advice.