Making a will and updating your will regularly is something that can be uncomfortable to think about, but the current health crisis means it is something that we should all be considering seriously.
Losing a loved one is difficult enough without those you leave behind having to manage the stress and complication of dealing with your affairs if you do not leave a valid will.
Sometimes people fail to appreciate that a will is so much more than just giving away assets. There are important considerations such as:
- Executor: A will allows you to choose and appoint one or more trusted persons to act as your executor. The role of the executor(s) is to collect your assets such as real estate, bank accounts, shares and insurance policies etc, pay all your debts and deal with any taxation responsibilities, and distribute your assets to your appointed beneficiaries in accordance with your directions.
- Guardian: In your will, you can appoint a guardian of your infant children (ie, children who are less than 18 years old) on the death of both parents. Such an appointment is extremely important, particularly if you have specific views on how you want your children educated, their religious faith and their general upbringing.
- Business structures: If you have any business structures, you should consider these as part of your estate plan. For example, you may need to pass powers of appointment of family trusts through your will, or gift shares in a company.
It is essential to obtain advice from a solicitor experienced in succession to ensure that your will is properly drafted and that your entire estate plan has been considered, including any superannuation nominations, life insurance nominations and business structures.
Having your affairs in order can provide considerable peace of mind, because then you know that your wishes will be carried out upon your death and your loved ones will be provided for.
Executing your will
The current climate and social distancing measures have created challenges in the execution of wills in the presence of two witnesses, as is required by the Wills Act 1997 (Vic) (Wills Act). The introduction of the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2000 (Regulations) on 12 May 2020 temporarily eliminates the requirement for wills to be executed in the traditional way, and enables wills to be signed electronically and by audio-visual means.
In accordance with section 40 of the Regulations, wills can be validly executed by:
- signing the document by electronic means; and
- making a statement on the will that the signature was made by electronic means in accordance with the regulation.
In accordance with section 41 of the Regulations, wills can be validly witnessed as follows:
- the witnesses observing the will–maker signing the will by audio visual link, either electronically or by signing a hard copy;
- a copy of the signed document is then to be transmitted to the first witness by either email, fax or another means on the same day;
- the first witness attests and signs the same copy of the will that has been previously signed;
- the first witness then writes on that copy a statement indicating the witnessing was done using an audio visual link in accordance with the Regulations;
- the first witness then transmits the signed will to the second witness, who repeats the steps above;
- the document is then returned to the will–maker, who writes on that copy that the copy is a true copy of the will signed by the will–maker and that the Regulations have been met;
- the will–maker then signs and dates this statement; and
- the above steps must all be completed on the same day.
In addition to the above, each witness is required to fulfil all existing obligations under the Wills Act including two witnesses observing the will–maker sign the will and being able to see and attest that the will–maker has signed the document.
The above measures do not override executing wills in person; wills may still be witnessed this way if preferred, provided that social distancing requirements are adhered to.
If you wish to sign your will by electronic means, we recommend that at least one witness to the will is a lawyer – to ensure that the will is signed correctly and in accordance with the Regulations.
If you have any questions in relation to the preparation of a will, or the signing or witnessing of documents by electronic means please get in touch with the author or a member of our Wills & Estates team.
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.