During times of good health individuals and couples often put off the idea of drafting and creating a valid Will. However, as of late, and due to considerable health concerns, many people are feeling the pressure to have a valid Will in their possession. But, due to the recent social restrictions, validating a Will must be undertaken with great care and planning.
First let’s look at the components and requirements for drafting a valid enforceable Will. A valid Will requires each of the following elements;
- Over the age of 18
- The Will must be in writing
- The Will must be signed by the testator
- The Will must be witnessed by two signatures present at the time of the signing of the Will
- You must have the capacity to fully understand the bequeaths of your Will
The process of drafting a Will can still be completed without too much difficulty. You will still need to take full stock of your estate, both personal property and real property. The information you gather can be provided to your solicitor via telephone or electronically. Once these steps are completed the Will can be drafted for you by your attorney and discussed with you via remote means, such as video conferencing or by telephone.
However, the problem with completing the process of creating a Will comes into play when the parties need to meet the most important component of a valid Will; the signatures and witnessing of the document. The testator must sign the Will in the presence of two witnesses. This is where the challenges may lie with regard to the recent COVID-19 restrictions. To bring three people together during this very uncertain time will take some careful planning and health considerations will need to be taken seriously.
First, you will need to find two people that it is safe to come into contact with. If you are still going to your workplace, you could consider using two colleagues. If you know you will be at an allowed social function, you could ask two friends who will be present to witness your document. Or, if you are going to a medical appointment you may feel comfortable asking two people in the office to assist you.
While it is not recommended that you ask someone who is a direct beneficiary, there may be other possible options within your household or family. For instance, if you have a family member who lives with you but who is not a beneficiary, you could ask them to witness the Will along with another person such as a neighbor. If you are having friends or family members over for a permissible event, you might want to take the opportunity to ask them to witness your Will.
If these are not viable options, you might consider asking your solicitor if you can come by their office and sign you Will in a large common area where the witnesses and yourself can see one another but remain at a safe distance from one another. Another possibility is to meet with your solicitor and two other persons in an outside pre-arranged meeting area where the Will can be set down on a table and each person can bring their own writing instrument and take turns approaching the table to sign the Will.
In the instance that you are a high risk individual, meeting with people in any capacity might not be possible. Under these circumstances we do not recommend that you guess at an acceptable method for witnessing your Will, or attempt to complete the signing in any electronic format. The Courts have not yet made any official determination as to what alterations to the signing of a Will might be legally acceptable under the current COVID-19 circumstances. Instead, it would be best to contact your solicitor’s office and explain your circumstances and ask for their expert opinion with regard to validating your will via the required signatures, and still remaining safe.
Estate planning and the execution of a valid Will is a process that must be done correctly, even under the current restrictions. Therefore, it is highly recommended that you contact a legal professional for the most up to date information as to how to properly create a valid will during the COVID-19 pandemic.
If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.