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Witnessing will signings amid the COVID-19 pandemic

The signing of a person’s will is taken extremely seriously, as this is the definitive legal document expressing final wishes about the distribution of an estate. The process of getting signatures, complete with witnesses present, must be followed to the letter. This has raised some distinct problems with the novel coronavrius pandemic sweeping the country and the world.

Social-distancing regulations designed to slow the spread of the COVID-19 infection dictate that people should not congregate, which has disrupted the normal gatherings needed to sign legal documents. This is an especially fraught moment for will signings to become difficult, as the disease outbreak has caused many Australians to think about their need to have an up-to-date will in case the unthinkable happens.

The responses to these difficulties have differed by state, with some changing their restrictions and others standing firm.

Witnessing will signings through car windows

The Age reported that in Victoria – in advance of legal changes that would enable easier document-signing – some attorneys had taken to driving to meetings with clients, then witnessing the signings through the windows of cars. In more extreme cases, witnessing took place over the back fences of yards, or even through the window of a hospital room.

The process of finalising a will requires witnesses to not just watch the document being signed, but for lawyers to ensure the person doing the signing is in a clear state of mind. This is why solicitor Kathy Wilson told The Age video witnessing should only be a short-term solution for any states that introduce it: It is simply harder to make sure a person is signing a document of their own free will when they are only visible through a screen.

Online witnessing of signings

Some states have moved ahead with video witnessing in the weeks since The Age’s report. InDaily pointed out that while the South Australian government rejected the introduction of witnessing via video calls, New South Wales government did adopt such a law, and will soon be followed by Queensland and Victoria.

There is a difference between online witnessing and e-signatures. The states that have adopted or are moving towards emergency witnessing procedures are using the former, not the latter. This means there must still be a physical document receiving a signature, but with the lawyer and other witnesses watching that signing remotely. Tim White of the Law Society of SA told InDaily video is much better than audio for judging soundless of mind.

Do you need to contest the contents of a will? If so, reach out to the experts at Gerard Maulof & Partners to discuss your options.

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