New regulations recently issued by the Chief Justice of the Supreme Court of Queensland now make it possible for people to sign their wills remotely under COVID-19 social distancing restrictions.

Previously, the law under Section 10(3) of the Succession Act said witnesses to a will must be in the presence of the person making the will, but that has now been relaxed.

The courts, over the years, have determined that “presence” means being in the physical presence of the will maker. This means, a video conference between witnesses and the will maker would usually not satisfy the witnessing and signing requirement under the legislation.

Previously, if the witnessing and signing requirements failed, an application could be made to the court under Section 18 of the Succession Act to dispense with those requirements.

Of course, the court doesn’t automatically do this as it needs to be satisfied that the will represents the will maker’s intentions. Because it is an application before a judge, not a registrar, there may be significant costs involved in making such an application.

However, on 22 April, 2020 the Chief Justice of the Supreme Court of Queensland (the court which governs these types of disputes in Queensland) issued a practice direction designed to alleviate the potential issue of the requirement of physical presence during the Covid-19 pandemic. 

Essentially, this means that if Covid-19 prevents the will signer from having their signature witnessed (either because of government enforced/recommended isolation or quarantine requirements), the signing and witnessing of a will can take place by video conference provided that: 

1. A solicitor is involved in the process (either by drafting the will, being a witness to the will or supervising the execution of the will);
2. The witnesses can properly identify the document executed as the will; and
3. The deceased intended the document to take immediate effect as their will. 

If those requirements are met, then the registrar has the power to dispense with the prescribed execution requirements.

As it is the registrar making the decision in this instance, the costs of applying to the court will be less and the practice direction also gives certainty to everyone intending to make a will via video conference during this time.  

This Practice Direction only applies to wills signed between 1 March, 2020 and 30 September, 2020. There still may be stringent requirements for special types of wills such as International Wills under the Unidroit Convention. 

We appreciate that with health very much in everyone’s mind at present, many people may wish to address their wills and estate planning but may not be doing so because of difficulties associated with COVID-19 restrictions and social distancing.

There are options available to overcome this, especially given the new regulations practice direction, and the expert team at Hillhouse Legal Partners is here to help.  

If you would like advice in this area, feel free to contact us on 07 32201144 or at robert@hillhouse.com.au.