In line with the Government’s ongoing relaxation of stricter COVID-19 social distancing requirements, we are now able to assist in the preparation of Wills, Enduring Powers of Attorney and Advance Care Directives (Advance Personal Plans in the Northern Territory) in person at our Adelaide and Darwin offices.
Please note: this article was updated 29 June 2020
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We are adhering to Government policy by ensuring our office is a safe environment; this includes all visitors to sign in on arrival, maintain appropriate 1.5m distance, avoid any direct physical interaction and utilise our hand hygiene stations.
We have always been flexible in how we provide our services to you, and if you prefer not to attend at our offices, we continue to offer alternative arrangements on request.
Making a Will
To make a valid Will, an individual must have testamentary capacity, therefore must understand the individuals they should have regard to, the nature and extent of their assets, the effect of the Will, and should have no mental disorder which would affect decisions as to the disposal of the estate. Open questions should be asked to ensure that the individual is able to show an understanding of potential beneficiaries, assets and what the individual would like the Will to achieve. If an individual is taking medication, or has a condition which could potentially affect the ability to make such decisions clearly, then best practice is to ensure that a medical practitioner assesses testamentary capacity at the time that the Will is signed. Where there is any doubt as to capacity, full notes on the open questions asked and the answers should be taken, to assist the Court if necessary at a later date to assess whether the individual had testamentary capacity or not.
A basic Will should set out the appointment of executors who will deal with probate and the administration of the estate, appointment of guardians where minor children are involved, any specific gifts, who the remainder of the estate should pass to after debts have been paid, in what shares, and at what age if minor children are involved. Provision is often made for substitute beneficiaries in case a beneficiary dies prior to the Will coming into effect.
To be valid, a Will must be in writing, signed by the individual making it (to evidence an intention to give effect to the Will) in the presence of two independent witnesses, present at the same time as each other when the Will is signed. The witnesses should both sign the Will and print their names and addresses. The Will should be dated.
How to Make a Will Whilst Limiting Physical Contact
The Law Society of South Australia, as the governing body of the legal profession in SA, has recently issued advice to practitioners in this regard. The Society of Trust and Estate Practitioners (STEP) has also issued advice to practitioners as how best to manage the difficulties presented with will signings following the outbreak of COVID-19.
- We can offer options for clients who are affected by COVID-19 undertaking forced or elected quarantine or who feel more comfortable limiting travel and interaction.
- We can take instructions by telephone, including video call (08 8235 7449) or by email (nikki.owen@finlaysons.com.au)
- We can then send quotes for the work, and drafts by email or post.
- Once the drafts are approved, we can arrange signing, while strictly enforcing social distancing and personal hygiene practices.
- Wills are required to be executed by the testator in the presence of two adult witnesses. We can still ensure the necessary requirements are met by having the two witnesses stand the required distance from the testator signing the Will and each other, but still within sight and presence of each other. Each witness can then witness the Will in the same manner.
- We are able to assist clients to facilitate Will signings from home. We can forward Wills to clients by post or email, with thorough signing instructions, to ensure they are validly executed. We understand that without guidance from a lawyer at the signing, confusion as to the requirements may arise. We are available by telephone to clients if they have any questions.
- If clients are isolating as a result of testing positive to COVID-19, or they live with another person who has been diagnosed with the virus, a client could sign a “Will” without witnesses as a last resort. The signing should be video recorded on a mobile telephone or tablet for example, with an explanation as to why no witnesses could be found and that the document is intended to operate as the last “Will” immediately. The recording should either be sent to someone to ensure that it is found, or a note should be left to confirm its existence. If witnesses can be found, an option is to have a video call on a phone or tablet, so that two witnesses can confirm that they watched the testator sign and confirm that it was to operate as the last “Will”. For the Court to accept an unwitnessed or unsigned “Will”, evidence will need to be provided to the Court that the testator intended the document to operate as the last Will. It may be invalid. We recommend that a properly signed and witnessed Will is put in place.
Challenging the Validity of a Will
There has been an abundance of changes professionally and personally as a result of the COVID-19 outbreak. It is important to ensure that alternative methods of practice in the legal sector are still in fact valid.
There have been numerous recent cases, as to what the Court would find to be a valid Will. Each case is decided on its very specific facts. One example was a document written by a deceased on his laptop computer entitled Last Will and Testament, saved onto the hard drive of the computer, to which he had affixed a digital signature to confirm that he intended the document to constitute his Will. The Court was satisfied that it was written by the deceased, and that he had affixed to it his digital signature. A DVD has also been held by the Court to constitute a valid document effecting the testamentary intentions of a deceased person – the deceased had made a DVD recording setting out that it was intended to be his last will and set out how his estate was to be divided. Even an unsent SMS message on a deceased’s mobile phone has been found by the Court in New South Wales to constitute a deceased’s Will.
We certainly do not recommend that clients rely on anything other than a properly made and witnessed written Will. Costs will be greatly increased by an application to Court to try to prove any other type of document, and the Court may find anything other than a properly made Will invalid in any event. Wills should be put in place now.
We are recommending that clients have Enduring Powers of Attorney, to enable nominated Attorneys to be able to access their finances for them in the event that they are physically or mentally unable to manage their own financial affairs, so that their Attorneys can access bank accounts and investments to pay for their needs.
They should check whether they have up to date binding or non-binding nominations on their super.
Finally, clients should also have Advance Care Directives in place to set out their wishes for lifestyle, care and medical treatment, in the event that they cannot communicate such decisions themselves, and to appoint Substitute Decision Makers to make any decisions not specifically provided for.
Applications for Grants of Representation to deal with deceased estates can now be made electronically, on receipt of a deceased’s original death certificate, original last Will, and details of all estate assets and liabilities. We will need to have the Will marked by the proving executors, and take the executors identification, prior to submitting an application to the Supreme Court for the Grant of Probate and Registrar’s Certificates which the executors will need to deal with the estate assets. We can assist with the remainder of the estate administration on receipt of the Grant of Probate if instructed to do so.
Please contact Nikki Owen directly, on 08 8235 7449 or nikki.owen@finlaysons.com.au if you need advice, or assistance to prepare a Will, Enduring Power of Attorney, Advance Care Directive or Probate application.
This content is current to our firm policy as at 29 June 2020. If changes occur we will advise accordingly.
It is important that you regularly keep up to date with all relevant COVID-19 information and be prepared to respond as the landscape in which the virus is moving changes.
This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.
