Can the drafting and signing of wills, powers of attorney and Court cases proceed during this pandemic?
The answer in short is yes, albeit with significant changes in processes and protocols.
We have seen a surge in enquiries for wills to be drafted and revised since the advent of this health crisis we have found ourselves in. What has been challenging is the way in which we have had to adjust the approach to Court hearings, having wills signed and witnessed as well as powers of attorney while complying with social distancing requirements.
How we’re getting wills in place during this pandemic
Prior to COVID-19, the standard practice when receiving instructions from someone wishing to revise or draft a will was that we would meet in person. This was done for a number of reasons, including creating an environment where the person detailing their wishes was under no influence or duress from any other person.
We are finding that people are more than happy to engage in a process that takes place online by video conference. Before we meet online we ask our clients to fill in an online form that covers much of the information that is required in the lead up to the live,online meeting. This form process also assists in the structuring of our online meeting and makes the meeting more productive and efficient..
What I am finding is that the online meetings are not dissimilar to our in person meetings in that we continue to have face-to-face contact. It is still possible to assess the capacity of the will-maker and in general the ability for my team and I to take instructions is as good as it ever was in-person.
One of the things we do religiously, particularly with the elderly, is ensure that they are alone with us when taking instructions in relation to a will. In regular, non-pandemic situations, it is not uncommon for an elderly will maker to be transported to the appointment by a child or other family member. The child or other family member is excluded from the meeting with the willmaker when instructions are being taken. Similarly now online when a client who is aided in the conference call set-up by someone else, once everything is set up and the will-maker is comfortable to commence, we ask anyone else present to leave the room. We confirm with the willmaker that they are alone before taking instructions and providing advice to ensure that they are able to express their wishes and provide instructions free from influence.
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Signing and witnessing of wills protocol
In New South Wales legislation has passed that has enabled regulations to be made in relation to amending the way in which documents can be signed and witnessed in a post Covid world, including the signing and witnessing of wills and powers of attorney. We are awaiting the making of the relevant regulations, so at the moment it is still necessary for the will to be signed by the willmaker in the presence of two witnesses who are present with each other and the willmaker at the same time as they witness the signature. All three people need to be physically present. We are hopeful that the appropriate regulations will be made in the near future so that the need for face to face meetings to sign documents will be overcome.
In the meantime, we have two solutions in play.
I have signed people up to their wills over the last few weeks and we have completed the process in our office, in a boardroom that has a very large board table that allows for a distance of at least two metres between the witnesses and the will-maker. We go through the hygiene processes of wiping down the table with sanitiser and everyone present is required to wear gloves. I stand a few metres behind the willmaker and direct the will-maker where to sign and observe the signing. The other witness stands on the other side of the boardroom table observing from a distance. Once the will-maker has completed signing the will with gloves on, the document is then passed to the other witness for signing and the process is repeated as I sign to witness the will.
The alternative method is that we have the will-maker sign the will in the presence of two other witnesses while we give instructions and talk people through the process step-by-step via phone or observe via an online video conference call.
Powers of Attorney
For enduring powers of attorney, one of the witnesses is required to be qualified to sign as a witness. This creates another level of complexity so doing it remotely is more problematic. If people require powers of attorney to be put in place during this health crisis and while social distancing requirements exist, we will need them to come into the office and follow the same in-person protocol as mentioned above with will-makers.
Court hearings
To provide some context about our current work, we have a five-day court hearing coming up in Sydney where we will represent four clients that live in different locations. Also involved in the hearing is a Barrister based in Sydney, my assistant lawyer who is in regional New South Wales, the Judge in the Courtroom in Sydney and myself in Canberra. Each of us will be in separate locations connecting via the Court video conferencing platform.
To have conversations with our clients and team we will have separate conferencing software in use so we have the capacity to speak privately with each other outside of the Court online conferencing platform. Additionally we will have printing and scanning capabilities so when cross-examining, if we wish to present a document that is not part of the Court evidence, we can digitally forward that document to a witness and to the Court.
From a practical point of view, if we weren’t to proceed with this matter now, our clients wouldn’t be likely to get a Court date until late 2021.
So for people who wish to have their will made or revised, powers of attorney put in place or wish to proceed with an estate dispute matter, these matters can progress throughout this pandemic.
While this has required process adjustments to will-making, powers of attorney and Courtroom hearings, we have developed, along with others, processes and protocols that allow us to continue to provide these services for our clients.
We are assisting people with their wills, power of attorney and representation during this pandemic while observing all social distancing obligations. The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
