The Queensland Parliament has now passed regulations allowing for Wills and enduring documents (including enduring powers of attorney and advance health directives) to be witnessed via an audio visual link. These are contained in the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020.
These regulations will apply to documents signed between 15 May 2020 and 31 December 2020.
How do the new regulations work?
Wills must still be witnessed by two people. However, the regulation allows both witnesses to witness the signing via audio visual link, in which case at least one witness must be a ‘special witness’.
For enduring documents, the only witness required for an audio visual link is a special witness.
The following qualify as a special witness:
- a lawyer
- justice of the peace
- commissioner for declarations who is employed by the firm who prepared the document and who normally witnesses documents of that kind
- a notary public
- the Public Trustee or an employee of the Public Trustee (if the document is prepared by the Public Trustee’s office)
When witnessing documents via audio visual link, the following requirements must be met:
- the special witness verifies the identity of the person signing the document
- the audio visual link enables the witness to be satisfied, by the sounds and images made by the link, that the person is signing the document
- the witness observes the person signing the document in real time
- the person signs each page of the document
- the witness is satisfied that the person is freely and voluntarily signing the document.
What happens after the witnessing?
As soon as practicable after a document has been witnessed via audio visual link, the witnesses must sign each page of the original document, or sign a true copy of the signed document (for example a scanned copy).
The regulations acknowledge that the witnesses may not be able to sign the original document or a copy on the same day the document was witnessed via audio visual link.
What else does my witness need to provide?
If a document has been witnessed via audio visual link, the special witness must provide a certificate, stating:
- the date the document was signed and witnessed
- the document was signed and witnessed in accordance with the regulation
- the steps the witness took to verify the identity of the person signing
- the process followed for signing and witnessing the document
- the special witness qualification (lawyer, justice of the peace etc.)
- whether the witnessing via audio visual link was recorded
- any other matters the special witness considers relevant to the signing or witnessing of the document.
This certificate must be kept with the document that was signed by the witnesses.
Importantly, the new regulations only relate to the signing of documents. They do not affect existing duties to consider things like a person’s capacity to sign, the possibility of undue influence, and verification of identity.