How Do I Sign My Will In Isolation?
In light of the currently enforced social distancing measures as a result of the Coronavirus pandemic, this may prove challenging for some.
Usually, for a will to be considered valid, it must be signed in the presence of two witnesses. If in the current circumstances, you aren’t able to find two independent witnesses (these are witnesses who are not family members, beneficiaries, or spouses of beneficiaries under the Will), then there is unfortunately little that can be done in terms of ensuring your Will is validly signed. As a consequence, if your Will is not signed correctly, there is, unfortunately significantly more work required after your death to make it useful.
However, given the current crisis, if you find yourself in exceptional circumstances where you must sign your Will, and you do not have access to two independent witnesses, luckily, there are steps you can take sign your informally.
Informal Will
Of course, a legal practitioner must be engaged to ensure the proper process is met in drafting and executing an informal will, however, the following steps can be taken by you to facilitate organising your informal will.
- Make a written note explaining the reasons you could not sign your Will in the presence of two witnesses, and state your intention in signing the informal will was to have it be your last valid Will. Ensure you sign and date the written note and keep it with your original Will.
- Arrange a video conference via Zoom or Skype with your lawyer so they can observe (witness) the signing.
- Take a video recording of yourself signing the Will. In this video, verbally explain why you were not able to approve your Will in the presence of two witnesses. Further, state that you intend the signed document to be your last valid Will.
- Photocopy or take pictures of the Will and send the original signed Will to your lawyer.
Remember, that if you do informally sign a Will, then you must re-sign your Will in the presence of two witnesses later when you can. Once your Will has been re-signed in the presence of two independent witnesses, you will then have a Will that meets the formal signing requirements.
Risks associated with Informal Wills
If you pass away before you can formally sign your Will, the only way to have an informally signed Will accepted as your last valid Will is to apply to the Court after your death. The court then needs to determine whether or not the informally signed Will will be your previous valid Will. As with other court processes, these types of applications are costly, and, even if the above steps are followed, it is not guaranteed the court will determine it to be your last valid Will.
As an overarching guideline, where possible, signing your Will informally should be avoided, and you should not attempt to draft your Will.
How can we help?
If you’d like a Will or other Estate-related documentation to be drafted, Robinson Nielsen Legal will be happy to assist you.
This publication is not intended to be a comprehensive review of all developments in the law and practice or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this update to specific issues or transactions. For more information or specific advice on your circumstances, please contact tracey@robinsonnielsen.com.au.
