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Can I get my will and other estate planning documents electronically witnessed?

Posted on 12th August 2021
Catherine Henry Lawyers
Catherine Henry Lawyers

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Can I get my will and other estate planning documents electronically witnessed

During a pandemic, it is more important than ever to have a will and other estate planning documents in order. This includes appointing a guardian to make medical decisions on your behalf if you are ever unable to and giving someone power of attorney to manage your finances and property.

However, if you are in lockdown or limiting your contact with people during the COVID-19 pandemic, this can make it difficult to see a solicitor or sign documents. Electronic witnessing has been temporarily introduced to help overcome this challenge.

Benefits of a solicitor drafting and witnessing your will and other estate planning documents

The role and the benefit of having a solicitor draft your will and other estate planning documents is to make sure that you

  • understand the terms of the document and that they reflect your true wishes
  • have capacity to make a will or similar document at the time of signing it
  • are not being influenced of pressured into signing the document.

A solicitor drafts the document in a way to help prevent it from being successfully challenged. Having the evidence of a solicitor-witness can be invaluable in preventing it from being overturned in Court.

How does electronic witnessing of wills work?

The Electronic Transactions Act 2000 (the Act) allows wills, enduring guardians, and powers of attorney to be witnessed by audio-visual link. These temporary measures have been introduced in response to the COVID-19 pandemic.

Over the audio-visual link, the solicitor will confirm your identity and sight photo ID. They will also confirm that they have the same document you do. The solicitor needs to carefully watch you sign the document and have a second witness sign the document.

The electronic witnessing provisions of the act are in force until 31 December 2021. Unless they are extended, we will go back to witnessing wills and other documents in person in 2022. While not ideal, there is an argument for continuing electronic witnessing of wills and other estate planning documents.

People living in remote locations can find it difficult and costly to meet a solicitor to execute their will and incapacity documents. Electronic witnessing means that people living in those areas are more likely to execute these documents. Given how important estate planning documents are, electronic witnessing has been a blessing. A silver lining of the COVID-19 pandemic!

Electronic witnessing of wills and elder abuse

One argument against continuing electronic witnessing is it can make it more difficult for a solicitor to confirm that you are alone and that someone else is not influencing you. Meeting a client alone to discuss the terms of the will, enduring guardianship and powers of attorney document is an important step to help solicitors to prevent elder abuse.

Electronic witnessing can make identifying and preventing elder abuse harder. But meeting with a person alone in a solicitor’s office or elsewhere is not 100% effective. An older person may have so much involvement with the person unduly influencing them that a few one-on-one sessions with a solicitor cannot break the relationship of influence.

Good solicitors can and should be vigilant about potential elder abuse no matter how they meet their client.

Should I put off making or updating my will or other estate planning documents?

Don’t wait. You never know what may happen in the future to prevent you from executing your estate planning documents. Later, you can meet with your solicitor again in person.

Need help with a will or other estate planning document?

Catherine Henry Lawyers experienced Wills & Estates team can help you to draft or update a will, enduring guardianship, or powers of attorney document. We listen to make sure the documents meet your needs.

Contact us

To confidentially discuss your needs call us on 1800 874 949 or fill in the form below, and we will be in touch.

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