Where there’s a will, there’s a way: How to isolate a legal will

Take the stage on the left to take on yet another challenge to the law – Covid-19.

It has created some real practical difficulties for people to meet the legal requirements to make a valid will. Distancing and isolation are the main problems as the law requires the person signing a will to do so “in the presence” of two other people. “Presence” usually means the physical presence of those who need to be able to see the willmaker’s signature and the other’s signature.

Fortunately, the law continues to respond to this novel problem. New South Wales and Victoria recently passed laws allowing wills to be written electronically. This means that you don’t have to be in the physical presence of the will-maker, but can do so via Skype or Zoom, for example.

The Queensland Parliament has now passed similar laws. In fact, it means that you can be in someone’s presence without being in their presence – a “Clayton Presence,” the presence you have when you are not. Instead of enjoying your attorney’s physical presence, you can now sit in the comfort of your living room, media room, or even bedroom and speak to your attorney. He or she probably won’t be in the same type of room (but it could be).

Once the conversation is over, they prepare and scan your will and even your permanent power of attorney for you. When you’re happy with that, the attorney will zoom or skype you again and go through the signing ceremony. You sign and he or she, along with another witness from your office, will testify in the sense that you watch as you sign. You can then actually sign the witness area when you return your signed copy. However, this change is limited in time – it currently only applies from March 1, 2020 to September 30, 2020.

For those who are unable to “be present” with witnesses, this could be an opportunity to virtually and successfully carry out their will.

Covid-19 had annoying news. On the one hand, it brought people’s attention like never before to the importance of preparing these documents. On the other hand, social distancing came into conflict with traditional rules for signing and witnessing documents, which required our physical presence with one another. The law has adapted to this requirement.

It has also created some potential difficulties. A lawyer must ensure that a client has the required skill to sign a will. Being in the presence of someone sitting over the table is often the most effective way to do this. In the virtual world, however, it is not that easy and lawyers have had to upgrade their own capacity to evaluate the capacity with which they are viewing someone on a screen.

While seeing customers in person with appropriate distancing procedures to create these documents is always the preferred method, the new virtual method now reduces the excuse for anyone not to do them. Covid-19 is no longer another excuse. The change in the law has given the stubborn the ability to actually do something without leaving home.

IMPORTANT LEGAL INFORMATION This article is general in nature and is for informational purposes only as it does not take into account your financial or legal situation, goals or needs. That said, it is not a financial product or legal advice and should not be relied on as if it were. Before making any financial or legal decision, find out if the information is appropriate for your situation and obtain independent, licensed financial services or legal advice.

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