COVID-19 and Witnessing Wills
Ordinarily, pursuant to section 6 of the Succession Act 2006 (NSW), a will is not valid unless it is signed by the testator (will-maker) in the physical presence of two or more witnesses and at least two of those witnesses attest and sign the will in the presence of the testator. However, the rapid emergence of the COVID-19 pandemic changed many aspects of contemporary life and will making was no exception. Observance of social distancing measures meant that physically witnessing wills was no longer a viable option, nevertheless, given the necessity for will execution, arrangements had to be put in place to allow for estate planning to continue despite the pandemic.
The Legislative Response
In April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) made under the Electronic Transactions Act 2000 (NSW) came into effect. The new legislation provides an alternative to in person witnessing by permitting the witnessing of a will (and other prescribed documents) by means of audio-visual link during the COVID-19 pandemic.
However as there was some uncertainty regarding the expiry of the provisions, Schedule 1 was repealed and its contents were transferred to Part 2B of the Electronic Transactions Act 2000, allowing them to operate generally rather than specifically in relation to the pandemic. Part 2B is to operate as a remote witnessing pilot scheme ending 31 December 2021.
What are the Requirements?
Pursuant to section 14G(2) of the Electronic Transactions Act, a person witnessing the signing of a document by audio-visual link must:
observe the signing of the document in real time; and
attest the signature was witnessed by signing the document or a copy themselves; and
be reasonably satisfied the document the witness signs is the same document, or a copy signed by the signatory; and
endorse the document, or copy, with a statement:
specifying the method they used to witness the signature; and
that the document was witnessed in accordance with Part 2B of The Electronic Transactions Act.
Should I Choose to Have my Will Witnessed by Audio-Visual Link?
Whilst documents witnessed by audio-visual link are no less valid than those witnessed physically, there are a number of practical issues so where practicable physical witnessing should be preferred.
Will the Documents Need to be Witnessed Again After 31 December 2021?
No. Documents witnessed and attested under Part 2B of The Electronic Transactions Act will remain valid after the provisions themselves cease to be in force.
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