Whilst social distancing measures have been adopted by Symons Phillips Lawyers, unfortunately the law may mandate that these social distancing requirements be absolute and that we are required to close our office to the public, and not be permitted to meet with our clients for a period of time.
There are legal requirements involved in the signing of a Will, requiring both the Willmaker and witnesses (2) to be physically present at the same place at the time of signature, and that all parties sign in the presence of each other.
It is not legal to sign in front of a witnesses by way of video link, be it FaceTime, Skype, Zoom etc. even though this may appear to be sensible.
It is possible that the Government may legislate to permit this, but in the meantime, we are happy to assist as much as we can and as legally possible and appropriate, based on public health recommendations for the foreseeable course of the pandemic.
We are at this stage still able to arrange a home visit for elderly or infirmed clients who are unable to attend.
We are trying to minimise in office signups and limit these to clients where it is important that a lawyer supervises the signing to ensure that capacity issues are hopefully avoided and otherwise on a case by case basis.
In other cases we have an “Out of Office Wills Signing Kit” which essentially comprises directions as to how you would have your Will signed properly to ensure that your Will is properly executed and valid.
This basically involves:
- Directions as to how to sign and how witnesses are to sign;
- A recommendation that there be confirmation provided by you either text or email or a scanned copy or a photo of the document showing the appropriate signatures. for lawyer verification that signatures appear all in order and the document is valid.
- Upon confirmation you would return the original to us for final verification and safekeeping.
This process is already in use for people who live in geographically remote areas or overseas, where we provide documents to clients in their final forms with these directions.
If there are further developments and it is possible (and in Victoria representations have already been made to the Government) that some form of arrangement be put into place whereby Wills could be witnessed in a less rigorous form, we would publish advice on any further developments.
The same rules apply to Enduring Powers of Attorney in the ACT, as there is a requirement that a certificate be given by a lawyer or other qualified person to the effect that the documents had been signed in the presence of that lawyer and that the client appears to understand the nature and effect of the document that he or she was signing.
Many of our clients are aware that some documents can be signed electronically, and legislation in some jurisdictions already provides for this.
It is important that not all documents are able to be signed in this way, particularly not Wills, Enduring Powers of Attorney and Deeds.
Mark Phillips
Robert Lynch