With Melbourne under Stage 4 restrictions since July 2020, maybe you are using the time at home to think about Estate planning. Maybe you’re concerned about what will happen with your Will or Enduring Power of Attorney (EPOA) that you’ve already started preparing but haven’t yet executed (signed).
Fortunately, the Victorian Government has passed regulations that allow for documents to be executed remotely. In this blog post, we explain the methods of remotely executing documents set out in the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
In normal times, you would execute a Will or EPOA in the physical presence of two witnesses, both of whom must see you sign the document.
During Stage 4 lockdown, legal offices are not open and your movements are greatly limited. This makes it almost impossible to find two independent witnesses to witness your Will. You could try accosting some strangers in the supermarket or out on your daily walk, but a much simpler way is to use video witnessing.
The steps for witnessing a Will or EPOA over video
- You will still need two witnesses, but they can witness you executing your documents via a videoconferencing system of your choice (e.g. Skype, Zoom, Microsoft Teams or Google Hangouts);
- If you have any witnesses in person (e.g. a housemate), they need to physically sign and date the document, as a witness, while on camera;
- Each witness signs and dates the same copy of the document (see ‘Electronic signatures’ below for this process);
- Each witness writes a statement that they have witnessed the document using an audio-visual link;
- The copy of the witness’ signed statement is sent to the person making the Will or Power of Attorney; and
- When the person making the Will or EPOA receives the witness statements, they write on the signed copy of the documents, that it is a true copy of the Will or EPOA and the conditions under the COVID-19 regulations have been met.
All these steps must take place on the same day.
You may be wondering how you can all sign the same copy of the Will or EPOA when you are physically distanced. Fortunately, the Omnibus Regulations allow for electronic signatures on the documents.
Regulation 40 allows individuals to sign a Will by electronic means, as long as they make a statement on the document that they have signed the document electronically (similar to the statement saying the document had been witnessed using an audio-visual link).
Similarly, Regulation 35 allows EPOA’s to be signed electronically.
For an electronic signature to be valid, it must meet the requirements of section 9 of the Electronic Transactions (Victoria) Act 2000.
- Firstly, a method must be used to identify the person and indicate their intention to sign the document. This ‘method’ can simply be a copy of your regular signature that you have scanned onto your computer or written using a touchscreen.
- Secondly, the method for signing must be reliable and appropriate for the purpose of signing a Will or EPOA. As these documents are very important, it is appropriate that we obtain your proper signature (scanned) on the document, rather than simply having you ‘sign’ by ticking a box.
- Thirdly, the parties must consent to you signing electronically. This doesn’t apply so much to Wills, where there is no other party, but if you are accepting an appointment as attorney, it is important that the person appointing you is happy for you to sign your acceptance electronically.
Formally signing your documents in person after restrictions are eased
When Stage 4 restrictions end, it may be appropriate (depending on individual circumstances) for you to come into our office to re-execute your documents in person. This will give an extra level of certainty and validity of your documents.
For further information on remote execution of documents, please contact us.
Getting started with your Will and EPOA online now
The lockdown may be the perfect time to get to all those things you’ve meaning to do; like your estate planning documents.
You can use our 100% safe, secure and cost-effective online platform to start your Will and Power of Attorney in the comfort of your own home. You can start the process now and complete it later. Or you can complete it in one hit. The flexibility is there.
Contact David Davis Lawyers (including during COVID-19)
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Find out about our services are working during the coronavirus here.