We have experienced a surge in demand as clients try and ensure that their estate plan is updated. Social distancing and other government policies are appropriate but have made obtaining instructions and executing estate planning documents challenging.
The Wall Street Journal reports that the phrase “getting a Will” on Google trends increased dramatically since 8 March 2020. The New York Times also published a column titled “Doctors are Writing Their Wills”. We have experienced a surge in demand as clients try and ensure that their estate plan is updated. Social distancing and other government policies are appropriate but have made obtaining instructions and executing estate planning documents challenging.
In South Australia, the standard practice for wills is as follows:
- The solicitor should take instructions from the Will-maker in a face to face meeting without any other person(s) present.
- It should be in writing and signed by the Will-maker and two independent witnesses.
- The witnesses should be over 18 years of age and should be independent; i.e. not be the same person as the executor(s) or any named or potential beneficiaries contemplated by the Will.
- The will-maker should sign the document first, following by the two witnesses.
- All parties should use the same pen.
- The witnesses should write down their names, addresses and occupations.
- The Will should be dated.
The complication arises in relation to obtaining instructions and the witnessing of the document. This issue has been addressed in New South Wales with the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) which passed on 24 March 2020 and includes a regulation-making power to allow documents such as Wills and Powers of Attorney to be executed in a manner other than prescribed by the existing rules and regulations. I understand that the Law Society of New South Wales is working with the State Government to enact regulations addressing the issues concerning executions of wills.
The Law Society of South Australia, as the governing body of the legal profession in South Australia, has recently issued advice to practitioners in relation to this subject matter. The Society of Trust and Estate Practitioners (STEP) has also issued advice to practitioners as to how best to manage the difficulties presented with will signings following the outbreak of COVID-19. We have adopted the advice of both the Law Society of South Australia and STEP as well as the advice generally by the Federal and State governments.
- We can offer options for clients who are affected by COVID-19.
- We can take instructions by telephone or video conference.
- We will provide fixed fees or estimates (where relevant) for all work.
- We can send draft documents for review by email or post.
- Once the draft documents are approved we will arrange execution while strictly enforcing social distancing and personal hygiene practices.
- Wills must be executed by the Will-Maker in the presence of two adult witnesses. We will ensure the necessary requirements are met by having the two witnesses stand the required distance from the Will-Maker signing the Will and each other, but still within sight and presence of each other. Each witness can then witness the Will in the same manner.
- If clients are isolating as a result of testing positive to COVID-19, or they live with another person who has been diagnosed with the virus, a client could sign a “Will” without witnesses as a last resort and we can work with you during this process.
- We do not recommend that you rely on anything other than a properly made and witnessed written Will prepared by a lawyer. Costs will be greatly increased by an application to Court to try to prove any other type of document (such as a video Will) and the Court may find anything other than a properly made Will invalid in any event.
- Finally, when the risks associated with COVID-19 are no longer a feature of our everyday life, we recommend all clients who have updated their will during this period and also those that have not, schedule an appointment to review their documents and the formalities associated with their documentation.
If you require assistance or further information in relation to wills and estate planning please contact us on 8523 8400 (Gawler), 8523 8444 (Tanunda) or 8211 6500 (Adelaide) to arrange a telephone appointment for an initial no obligation consultation. Alternatively, send an email to firstname.lastname@example.org.