Covid 19: Signing and Witnessing of Wills

How to sign a Will during lockdown

We have always emphasised the importance of having a Will and Enduring Powers of Attorney (EPAs) in place regardless of age and circumstances. The Coronavirus outbreak is a strong reminder that if you are over the age of 18, these documents are essential.

While many legal documents have formal requirements for signatures to be witnessed, there are particular requirements for EPAs and even stricter rules for Wills. Wills and EPAs are not valid unless they are signed and witnessed correctly. Given the current Government restrictions on movement and social distancing rules, that could prove a challenge.

Having your Will signed and witnessed safely while complying with the law
In an effort to relax the signing and witnessing formalities during this unprecedented situation, the Government has made a temporary law change to modify the requirements for signing and witnessing Wills. 

While Wills must still be in writing and signed by the Will maker in the presence of two witnesses, the law change now allows Wills to be signed and witnessed using audio-visual links such as Zoom, Skype or Facetime. 

How? There are a few steps to be followed:

• the will-maker can sign the Will by audio-visual link in front of two witnesses who may each be in a different location.
• witnesses will then sign a copy of the document in front of the will-maker by audio-visual link. 
• the Will must include a note that it is signed this way because an epidemic notice is in force. 
• photographs or scans of the signed copies must then be sent as soon as practical to a person who has been chosen to hold the document (this will usually be a lawyer or trust company).
• physical copies of the signed documents must be kept somewhere safe and, when possible, posted to the lawyer.

The changes made are temporary. The modification order will expire after the Epidemic Preparedness (COVID-19) Notice 2020 (the Epidemic Notice) is lifted, and the law will return to normal. However Wills signed while the Epidemic Notice is in force following the requirements outlined above for signing and witnessing are valid Wills and there is no need to sign a new Will after revocation of the Epidemic Notice.

What happens if you can’t have a Will validly signed and witnessed?
We acknowledge that many people are not going to be able to achieve having their Will signed properly while in isolation. Some may have no access to audio-visual links or they may have no one to witness their Will while in isolation. Many people will be in isolation with those they would want to benefit under their Will and the rule that any beneficiary may not witness a Will has not been relaxed. 

The Will may still be signed by the Will-maker (without being witnessed) and kept in a safe place until after restrictions have ended. Bear in mind however that Wills that don’t comply with the formal requirements are not valid until signed and witnessed by two witnesses. 

If the Will-maker dies before the restrictions are lifted and before validly signing and having the Will witnessed, the Wills Act allows the High Court to make an order declaring a Will to be valid even if it doesn’t meet all the formal requirements. The judge can do so if satisfied that the document expresses the deceased person’s intentions. The process for probating such a Will is more complex but it is the best alternative particularly for the elderly and the vulnerable who are currently in a position where they cannot validly execute a Will.

Enduring Powers of Attorney - signing procedures
EPAs are invaluable documents meant to allow a prompt management of your affairs in case of an accident, loss of mental capacity or while you are outside of New Zealand. An EPA for property will provide authority for someone to carry out certain functions for you such as paying monthly bills or buying or selling property. An EPA in relation to personal care and welfare will only come into effect should you lack the capacity to make those decisions yourself and in that situation, your attorney will be working with your health professional or doctor to make decisions in your best interest.
 
If you lose capacity without having EPAs in place then a court application process needs to be followed before your affairs can be managed. This can be a lengthy and expensive process

Signing procedures for EPAs are fairly complex. There are four categories of persons signing each individual document: (1) the donor; (2) the witness for the donor (who must be a lawyer, legal executive or authorised officer of a trustee corporation); (3) the attorney or attorneys (including successor attorneys), the signatures of each of whom must be witnessed separately; and (4) each attorney’s witness who must be a person other than the donor or the donor’s witness.

The remote signing and witnessing procedures for EPAs should be carried out in the same practical manner as for Wills using audio-visual links. The standard EPA forms will need however to be amended to reflect the fact that they have been executed and witnessed remotely.
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If you haven’t reviewed your Will and EPAs in a long time, now it’s the time to do so to ensure they reflect your current wishes. If don’t have these documents, please consider making arrangements to have them in place as soon as possible.