Covid-19 – estate planning
A Will or Enduring Power of Attorney can be one of the most important documents you prepare. Ensuring that they have been properly prepared, signed and witnessed are key. With the recent advertising of “online wills” with “no appointment necessary” it is important to understand the requirements how your Will and Enduring Power of Attorney are prepared to be valid documents.
There are certain matters which simply must be done in person – the verification of identify and witnessing of transfer and other Titles Office documents for conveyancing are one area. Another is the preparation of Wills and Enduring Powers of Attorney. The policy reasons behind such strict requirements for these areas relate to fraudulent transactions and the possibility of undue influence.
Providing instructions to make a new Will or Enduring Power of Attorney
Whilst it may seem straightforward for you to provide your instructions about who to appoint as your executor and how you would like to distribute your property, a competent lawyer following the strict obligations set down by law, is also going through a process of confirming your identity, understanding who you are and what you are trying to achieve, making an assessment about whether you have the capacity to create a new Will or Enduring Power of Attorney and ensuring that you have not been influenced by another person in making decisions.
It is for these reasons that best practice for taking your instructions about these documents cannot be done by electronic means such as telephone, Zoom or Skype. We would not be serving your interests properly to take your instructions in that manner. It is not possible for us to make an assessment of capacity over video or to be certain about who else may be present in the room at the other end of the call.
We will continue to follow the guidelines set down by the Queensland Law Society and make sure those instructions and the required assessment is an in-person process. To simplify this process we will send you a questionnaire about the sorts of things you will need to think about in preparing your Will or Enduring Power of Attorney. This allows us to consider your instructions in advance of your appointment and where appropriate prepare draft documents to have ready to review at your appointment.
At your appointment we formally clarify your instructions, ensure that you understand the preparation of your Will and Power of Attorney and have the required capacity. We also make an assessment of your family circumstances and ensure there are no issues of fraud or influence. We then work with you to finalise your documents at your appointment.
What about signing the Will – isn’t that straightforward? Can you witness a Will or Enduring Power of Attorney by Zoom?
For a Will to be valid it must be in writing, signed by the testator and witnessed by 2 or more persons, all being present at the same time. The witnesses do not need to know the contents of the Will, just witness the physical signing of the Will.
It is not possible to witness a Will or Enduring Power of Attorney by video conferencing or telephone. Particularly for Wills this turns on the requirement set out in the Succession Act (Qld) – “At least 2 of the witnesses must attest and sign the will in the presence of the testator”.
Can’t I get other people to witness my Will or Enduring Power of Attorney? Does it have to be my lawyer?
An Enduring Power of Attorney has it’s own special witnessing requirements. This document must be witnessed by a lawyer, Justice of the Peace or Commissioner for Declarations. They must not be related to you in any way, not named in the document and not a paid health care provider. Importantly they must certify that the person making the document knew and understood the contents of the document. This last point becomes very relevant if there is a question later as to whether the person making the document had capacity. The witness can be called upon to give evidence before a Tribunal about what steps they took to satisfy themselves about that.
Turning to Wills – there are specific requirements about who can and cannot witness your Will – they shouldn’t be related to you or named in your Will as your beneficiary. Again if there are questions of capacity the person who prepared the Will and the witnesses might be called upon to give evidence about that.
A lot of responsibility flows from the preparation of and signing of both Wills and Enduring Powers of Attorney. They are important documents.
What should I look out for in an “online will” package?
Despite the warnings above, if you decide to opt for an “online will” make sure that you read the fine print and letter of engagement with the company carefully. It is likely that the lawyer preparing your documents for you will let you know that they are not responsible at all for how the documents are ultimately prepared, the instructions you give them or for ensuring that the documents have been properly signed by you. It is what lawyers call being “off risk”. They will not want to be sued by your family later because the documents have not been properly prepared or signed.
Is there a better way?
If you would prefer the certainty and peace of mind knowing that your documents have been prepared properly, your full instructions have been taken into account and you have someone looking out for you to make sure that your instructions are appropriate and not influenced by others then make an appointment to meet with a lawyer.
We do however understand the need to maintain social distancing and adhere to directives by the Government regarding social isolation during the Covid-19 pandemic. At this time lawyers remain an essential service pursuant to the Queensland Health directives. This means that it is okay for you to attend at our office when required. When you attend at our office for these engagements we practice the required social distancing and ensure that our office is cleaned after each engagement. We also space out any appointments we have to limit contact with others.
If we can assist you with the preparation of a new Will or Enduring Power of Attorney, please contact our office by telephone on 3343 9522 or by email to email@example.com.