Making a Will and Estate Planning during the COVID-19 lockdown

With the rise of COVID-19 and social distancing measures, the thoughts of many are turning to their loved ones, and the subject of Wills and Estate Planning. While these are important documents ensuring that our loved ones are well looked after, the vulnerability of many of our family members means we may be rightly worried about leaving our homes to arrange them in the current climate. Thankfully, Gavin Parsons & Associates is well versed in the current and evolving legal requirements of these documents, and can help you engage in the process, without risking the health of yourself or your loved ones.

Estate Planning …………………..….at a Distance

With social distancing, it is currently inappropriate in most cases to travel to meet in-person with a Lawyer. Although legal advice and the preparation of Estate Planning documents can be conducted remotely (telephone, email, post), the execution, witnessing and attesting restrictions are more stringent. To remedy this, the NSW Government has introduced emergency measures to implement new regulations permitting important documents such as Wills to be signed and witnessed electronically.

At the time of writing, the regulations are yet to be implemented. However, it is expected to be in force imminently.

Wills

In NSW, the legal requirements surrounding the execution and witnessing of a Will are strict.

Not only must a Will be made in writing, it must also be signed by the maker of the Will in the presence of two (2) or more witnesses, who must then affirm and sign the Will themselves.

However, under the new regulations (referred to above), such witnessing measures may be varied to enable electronic witnessing across a medium such as FaceTime or Zoom. Hence, if you are rightfully avoiding close contact, but still want to make a Will, it appears you will soon have the option to do so remotely/safely.

Prior to any such measures being enacted, remotely signing and witnessing a Will does not constitute valid execution in any formal sense, however, it may be deemed valid upon application to the Courts (possibly at great expense, time and inconvenience).

Enduring Power of Attorney

When someone becomes incapacitated, or otherwise unable to conduct their own financial affairs, the authority to undertake matters on their behalf does not immediately pass to their next of kin. An Enduring Power of Attorney allows a specified individual(s) to immediately step in and help manage such a person’s financial affairs.

While this document can be drafted at a distance, like a Will, its valid completion requires that the appointor’s signature be witnessed and attested to by a “prescribed witness” (which in this case, includes a Lawyer), who provides a certificate as to the appointor’s capacity and authority.

The aforementioned regulations permitting electronic / remote execution and witnessing are expected to be in force imminently.

Appointment of Enduring Guardianship

Whereas the Enduring Power of Attorney deals with financial matters, the Appointment of Enduring Guardianship assists with lifestyle and health care decisions, in the event that one loses capacity to make such decisions. This appointment is achieved through completing a form of appointment. Similarly to the case of an Enduring Power of Attorney, the appointment must currently be witnessed and attested to by a Lawyer or other prescribed witness.

The aforementioned regulations permitting electronic / remote execution and witnessing are expected to be in force imminently.

This Information Guide

Now is the time to pick up the phone and/or email GPA Law and finalise your Estate Planning which can then be properly witnessed. To discuss setting up a Will, your Estate Planning options and/or proper execution of same, GPA Law are here to advise you in the safest manner permitted by law. Make your worries about all of this a distant memory, from a distance, with the assistance of GPA Law.

The above information is intended to be a guide only. This guide should not be relied upon or interpreted as legal advice, because it is not. For further information on Wills, Estate Planning and legal advice please contact Patrick Gallego or Gavin Parsons by telephone on (02) 9262 4471 or directly by email at patrick@gpalaw.com.au or gavin@gpalaw.com.au.

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Date posted: 2020-04-21