Laws to enable ‘virtual’ witnessing of wills

NEW laws to allow "virtual" witnessing of wills of sick COVID-19 hospital patients are expected to be introduced next week.

Queensland Law Society president Luke Murphy expects the Attorney-General to table new emergency legislation for easier preparation of valid wills for COVID-19 patients.

Queensland Health has recently given an exemption allowing lawyers to go into hospitals to take will and power-of-attorney instructions from patients with coronavirus.

It came after the QLS complained of solicitors being barred from seeing clients with the virus.

But the Succession Act requires two witnesses to be physically present for a will signing, and Queensland Health will only allow a single solicitor to be near a patient.

Lawyers who have previously prepared wills for hospital patients said many medical staff refused to act as witnesses when wills were being signed.


Queensland Attorney General Yvette D'Ath
Queensland Attorney General Yvette D'Ath


Attorney-General Yvette D'Ath has been working with the Bar Association of Queensland and the Queensland Law Society in preparing legislative amendments to address these issues, a spokesman said.

Mr Murphy said the new legislation could include allowing virtual witnessing of wills, through video conferencing, Zoom or Skype.

He said it could involve exemptions for COVID-19 wills, such as allowing a photograph of a signed will document to be emailed to the solicitor and witnesses being in the solicitor's office.

He said law changes were needed to avoid costly court applications for acceptance of documents that did not comply with witnessing requirements under the Succession Act.

Mr Murphy said recently an experienced succession lawyer had an elderly client who wanted to update his will, but who had been told to have no contact with anyone.


Confirmed COVID-19 Cases in QLD


He said the lawyer read the document to the vulnerable client over the phone and arranged for the client to later sign and date the document, without witnesses, and send it back.

Mr Murphy said it had been impossible to comply with witnessing requirements and therefore it would require a court application for it to be confirmed as a valid will.

Last month, Queensland Law Society issued a practice note for lawyers reminding them of their legal duty regarding taking will and enduring power of attorney instructions.

"It is not currently possible to witness a will or an enduring power of attorney via video conferencing or telephone," the QLS said in the practice note.

There was no legal authority or precedent in Queensland for digital signatures or video witnessing to be accepted as a formally valid will.

Brisbane solicitor Ian Bartels said his firm had recently seen an increase in people making wills and enduring powers of attorney, clearly due to COVID-19.



Originally published as How to witness wills in the age of coronavirus

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