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The Future of Electronic Signatures on Wills in WA

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You may have read some of our other recent blogs about how to sign your Will during COVID-19, when to review your Will, and the importance of having a valid Enduring Power of Attorney and Enduring Power of Guardianship.

In Western Australia, a Will is not valid unless:

  1. it is in writing; and
  2. it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction (in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will); and
  3. the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
  4. the witnesses attest and subscribe the will in the presence of the testator, but no publication or form of attestation is necessary.

With recent self-isolation and social distancing rules, many people have had difficulties signing their Wills, particularly because of the ‘presence’ requirements.  

New Zealand, Queensland and NSW have made changes to their laws as to how Wills are to be signed.  For example:

  1. In New Zealand, Wills are able to be signed and witnessed using audio-visual links (for example, Zoom, Skype, Facetime, until such time as their Epidemic Notice is lifted;
  2. In Queensland, Wills are temporarily able to be witnessed and signed electronically, rather than in-person; and
  3. In NSW, Will are temporarily able to be witnessed virtually by methods such as Skype, FaceTime, Zoom and even WhatsApp.

Western Australia did not introduce similar temporary measures.  Fortunately, at the time of writing this blog, social distancing restrictions are easing, and people should be able to properly sign their Wills. 

A Will is one of the most important documents you can ever sign, and the strict requirements for a Will to be valid reflect the significance of a Will. However, we can do almost anything electronically these days. The World and technology continue to evolve but should the way in which people are able to sign Wills also change? Our view is yes, but it would need to be done carefully.  As with anything, making changes may lead to ‘loopholes’ being created and abused.  It is a difficult predicament for lawmakers, and we will watch with interest to see what changes are made, especially post COVID-19. 

 

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Wednesday, 05 August 2020

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