The signing of a Will by a person (testator) and the witnessing of that Will have always been an important part of ensuring the validity of a Will.
The solicitor who drafted the will must verify the testator’s identity and ensure that anyone witnessing the will is not a beneficiary under the Will. The witnesses must actually witness the will makers’ signature on the will and each other’s signature. These are a few of the requirements under the Succession Act 2006 that need to be met to go towards ensuring that a will is valid and a probate application is granted to allow the testator’s estate to be administered in accordance with their wishes.
We now find ourselves in lockdown. We have not been able to leave our homes except for essential reasons and many people are working remotely from home and live alone. Does this mean that no one can make a will until lockdown finishes?
On 22 April 2020 and extended to 31 December 2021, the Electronic Transactions Amendment (COVID 19 Witnessing of Documents) Regulation 2017 was activated to allow the signing of certain documents to be witnessed by audio visual link. These documents include wills, powers of attorney and enduring guardianship appointments.
To witness documents by video link, a number of requirements must be adhered to; these include:
- The will maker’s identity must be verified. This can be done by providing a copy of your driver’s licence or passport;
- Ensure that the document being signed by the testator is identical to the document being witnessed;
- Ensure the witnesses can see both the face and the signing hand of the testator, so the witnesses can see the testator signing the document;
- The witnesses must sign the document as soon as practicable after witnessing the testator sign the document. This can also be done in counterpart.
- The testator must observe each witness signing the counterpart or copy document in real time.
- Any counterpart copies and the document with the testator’s signature must be stored together.
It is also a good idea to record the signing process to ensure that evidence is available to go towards proving that the documents were signed in accordance with the new regulations.
If you need a will, enduring guardian, or power of attorney document, don’t let lockdown delay your decision.
