Electronic Witnessing of Wills and Powers of Attorney

Electronic Witnessing of Wills and Powers of AttorneyLast year was a difficult year for Wills & Estates lawyers. When COVID-19 hit, lawyers had to work from home and could no longer have face-to-face meetings with their clients. A big problem quickly arose, how could our clients sign their Wills in front of two witnesses when they were unable to leave their homes and couldn’t have visitors to their homes? Wills can be witnessed by anyone over 18 but we normally recommend that witnesses not be mentioned in the Will, which normally discounts members of your household who are the most likely to be named as Executors and beneficiaries.

Fortunately, the Victorian government introduced emergency legislation that enabled certain legal documents, including Wills and Enduring Powers of Attorneys (“EPAs”) to be signed electronically. That emergency legislation has now sunsetted but the Victorian government introduced permanent legislation in April 2021 called the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 which amends various legislation to change the way certain legal documents can be signed and witnessed.

Wills and Enduring Powers of Attorney can now be signed and witnessed electronically by audio-visual link. There are many ways to do this but basically the person signing the document and the witnesses appear to each over audio-visual link (examples include Zoom or MS Teams) and then the witnesses watch as the person electronically signs the document. The signed document is then emailed to each of the witnesses who also then sign while everyone watches on. Everyone needs to be located in Victoria at the time of signing and witnessing. The only exception to this is the Appointment of Medical Treatment Decision Maker.

Of course, these documents can still be signed in person if you would prefer a face to face meeting or signing electronically is just not possible for you. The option to sign your Will and Power of Attorney documents electronically provides more flexibility in scheduling a time to get your estate planning in order.

So, if you have been waiting to make or amend a Will or Power of Attorney documents because you were concerned there was no way to sign these documents during the lockdown, you do not need to wait.