Last Wills in a Pandemic

We are in a period of great uncertainty and understand that the Coronavirus can have a significant impact on our personal and financial well-being. 

Preparing a Will is one of the most compassionate things a person can do for their family.  It is critically important that you have a valid Will in place in these difficult times.  Having a valid Will is the best way that you can ensure your personal items and assets will be distributed according to your instructions following your death. 

Due to the current COVID-19 pandemic, we understand that you may be unable to attend a solicitor’s office to give instructions or sign your wills.  

Given this unprecedented time, to make things easier for you; we have outlined a list of questions which we think will help you in relation to executing your Wills.

Your Will be prepared solely based on your verbal and/or written instructions.  There is absolutely no need to visit a solicitor face-to-face.  You can speak with a solicitor via Zoom, Facetime, Skype or simply by telephone.  If you have any written instructions or documents, you can send these via email.

For a Will to be validly executed, the testator’s signature must be witnessed by two adult witnesses who are not beneficiaries and dated.   Both witnesses must physically oversee the signing. The testator and both witnesses should sign with the same pen.

• What if I cannot attend my solicitor’s office to sign my wills?

We will post your wills to your home along with a clear instruction which set out the correct way to make your Will valid.  You can telephone us with any questions or issues and if you like, you can send us a photograph of your attestation page so that we can ensure it has been validly executed.   

• What if I cannot locate two witnesses due to the current COVID-19 pandemic?

In exceptional circumstances, you may choose to sign your Will in the presence of only one witness, or no witnesses. If you choose to sign your Wills in the absence of a witness, you should explain to your solicitor why you were unable to locate two witnesses when you signed your Will – for example, where you are required to self-isolate or quarantine.

If you do not re-sign your Will in the presence of two witnesses before you die, then in the event of your death, the executor of your will is required to make an application to the Supreme Court declaring that Will you signed is your last valid Will.

Although it is recommended that you do not sign your Wills in the absence of the witnesses, sometimes this is the only option available in dire circumstances. 

• If I am in self-isolation or quarantine, how do I sign my will?

If there is no other option but to sign your Will without two witnesses present, we recommend that you either:

1. Arrange to video conference a person in your solicitor’s office to observe the signing; or
2. Record a video of yourself signing the will and include:
   • A brief explanation of your attempts to arrange for two witnesses and/or reasons why you were unable to locate two witnesses;
   • Confirmation that you do not wish to make changes to the Will; and
   • A statement to the effect that you intend that document to operate immediately as your Will;

Following the execution of the Will you should then take photographs/ digital images of each of the signed Will and completed checklist and then send these to your solicitor (together with a copy of the video if you have taken a video yourself with the included explanation discussed above).

As soon as the crisis is over, you should immediately contact your solicitor to schedule an appointment  and makes sure that your Will is validly executed.

• What happens if I do not sign a Will?

If you take no steps to sign your Will formally or informally, your existing will remain in place and will be legally binding on your estate in the event of your death.

And if there is no previous will in the event of your death your estate will be dealt under the rules of intestacy except in extremely limited circumstances which may require expensive court litigation.

If you need assistance preparing your last wills, please contact Fraser Lamb on (08) 8177 2043.

The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law is continually changing and the circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.