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99 Problems but Your Will Won’t Be One

by | Apr 14, 2020 | Wills & Estates

Wills and Estates Planning – Dealing with COVID-19 Impact and Issues

During this particularly challenging time of uncertainty, it is important we understand what we can do to manage and protect not just our health and well-being, but the well-being of our families.

Most people simply do not want to think about their own mortality or having to face the thought of death, which is probably one of the most common reasons for not making a Will. Making a Will is not about facing the inevitable. You should think of it as something which is going to make sure that your family or loved ones are taken care of in accordance to your wishes.

It also appears that making a Will is one of those things which can easily be put off until ‘tomorrow’. For young people in their 20s and 30s it seems that their final day is a long way into the future. For most of those people, it will be. However, the unexpected sometimes happens. Everybody needs a Will no matter how young you are.

On that note, we encourage you to use this time to get your estate planning in order. Chances are you now have the time to think through the issues you have placed on the back burner for so long.

We understand many of our clients and readers have a variety of Wills and Estates Planning related questions and issues. We have, accordingly, collated a short Q&A guide of 11 common questions.

Whilst we have strived to cover these questions to the best of our ability, the circumstances of your situation may vary and therefore, it is important to first discuss your case with our lawyers.

Our dedicated team at Nevett Ford are fortunate to be able to operate remotely and we are continuing to provide our full range of services, but make some necessary changes to the way we work in some cases. We are able to provide legal assistance in fundamental legal matters – from the drafting of your Will to the point of its execution.

What documents should I consider making?

In essence, you should be thinking about the following:

  1. A Will is an essential tool in ensuring that your property and assets will be distributed in a way which you choose, which will make the estate administration process a lot easier for your loved ones.
  2. A Power of Attorney is a legal document that authorises your appointed attorney to act on your behalf, in financial, legal and or personal matters. A Power of Attorney is no longer valid after your death.
  3. An Appointment of Medical Treatment Decision Maker is a legal document that authorises your appointed decision maker to make medical treatment decisions on your behalf when you no longer have capacity to do so.

What are some things I need to consider in my Will?

These are ten things you need to consider when you are getting started:

  1. What assets do you own, either in your own name or with other people?
  2. Who will be your Executor to administer your estate? Your executor should be someone you trust, capable of handling and overseeing the distribution of your assets in accordance to your Will with assistance of estate lawyers.
  3. Who will be your beneficiaries? Who may claim that you should have made provision for them in your Will?
  4. Do you have any sentimental items you want to go to particular people?
  5. Is there someone you are excluding, or wish to exclude, from your Will? You will need to discuss this further with your lawyer, as this may not necessarily prevent the excluded party from making a family provision claim against your estate.
  6. If you have children under 18 years of age, who will you appoint as guardian to look after them if you and your spouse die?
  7. If you have pets, who will care for your pets?
  8. Are you an organ donor?
  9. Do you have any funeral, cremation or burial instructions?
  10. Do you want to leave money to charity?

For Powers of Attorney and Appointment of Medical Treatment Decision Maker, you will need to consider who your nominated Attorney(s) will be. It is recommended that you nominate two Attorneys, with one acting as your primary Attorney and the other as your secondary Attorney.

When should I review my Will?

You should review your Will if:

  • Your family relationships change (marriage, separation, divorce, remarriage, children, children become adults) noting marriage will revoke a Will made before you got married;
  • Your family members change (deaths, births of children or grandchildren, stepchildren);
  • Your assets change (purchase or sale of properties, changes in level of wealth);
  • Your executors, beneficiaries or testamentary guardian predecease, or become unavailable; and

Changes in circumstances to your beneficiary (bankruptcy, gambling addiction or substance abuse).

Can I use a Will Kit purchased from the post office?

While using a Will Kit may be a cheaper alternative, we strongly discourage it. A Will Kit does not cover all bases, nor cater for blended families. A Will Kit is less likely to be legally binding and executed correctly, and therefore opens the possibility for challenges to an estate. It is important to note that a Will must conform to strict legal requirements otherwise the Courts may decide it is not valid.

Do I need a Will if I do not have many assets?

Most people think that making a Will is only necessary if you have a lot of money and assets. Whilst this may be true, an individual’s financial position may change in the impending future. You may inherit a family member’s estate, receive a substantial gift of cash or asset or receive a huge bonus from your employer.

If you do not make a Will, your estate will be divided according to the rules of intestate succession and could mean that your assets may not go to the people that you want them to.

I have assets in Australia and internationally. Can I make a Will in Australia to cover all my assets?

Due to the complex nature of estate planning and administration, particularly when you have assets in separate countries, it is recommended that you make a Will in each country in which you hold assets. This is because not all countries have the same legal requirements that must be met to deem a Will as a valid Will.

Each Will should be prepared by a lawyer who practises in that particular country and has expertise in their specific jurisdiction to ensure that your Will meets all the relevant legal formalities. This may be more expensive and time consuming than having a single Will to cover all assets, but it is likely to make the administration of your estate smoother and more costs-effective.

If you do make Wills for separate counties, it is important to advise each of your lawyers that you intend to make, or have already made a Will in another country. This will ensure that your Wills complement each other and only dispose of assets in that particular country.

What can I do if I do not have my lawyer present with me as a witness when executing my Will? Can I ask my spouse, children or relative who is an executor and/or a beneficiary under my Will to be my witness?

Firstly, Wills do not require a qualified witness, so it can be mailed, couriered or sent to a client electronically as a secured PDF with instructions about the signing. With Enduring Powers of Attorney however, one of your witnesses must be a qualified witness authorised to take affidavits.

Section 11 of the Wills Act (Vic) 1997 states that: “A person who witnesses a Will or his or her spouse or domestic partner, at the time the Will is witnessed, is not disqualified from taking a benefit under the Will.”

In saying that, whilst a named executor or beneficiary can witness your Will, it is recommended that they do not act as your witness simply to reduce the risk of undue influence. The first preference for your witness should be your lawyer, however during this COVID-19 crisis, your lawyer may not be available to be physically present in the same room as you to witness you signing your Will. In such a case, you will need to make your own arrangements for suitable witnesses, such as your neighbours or medical attendants to visit you while maintaining appropriate social distancing to witness your Will, if possible.

We suggest, in these circumstances, that a video conference (via Skype or Zoom) be scheduled between you and your lawyer with your witnesses physically present, before you execute your Will. This will allow your lawyer to supervise the signing and witnessing of your original Will. During the video call, you should read over the Will with your lawyer and your lawyer should explain the contents of your Will to you and answer any queries you may have. At the same time, this gives your lawyer the opportunity to assess your testamentary capacity (again), and to ask you to scan the room with the camera to demonstrate that there are no other people in the room (who may be coercing you). Your lawyer should stay with you on video call throughout the whole process to ensure accuracy of signing.

Are electronic signatures legal?

Wills, codicils, Enduring Powers of Attorney and other testamentary documents are not valid if signed electronically. In terms of Victorian state legislation, Regulation 6 of the Electronic Transactions (Victoria) Regulations 2010 (Vic) expressly excludes Wills, codicils or any other testamentary documents from electronic signing.

The Regulations however will sunset on 27 July 2020, unless extended by the government.

If all means to adhere to the ‘traditional way’ of signing a Will fail and digitally signed Will is only possible in your circumstances, it may be possible for a digitally signed Will to be admitted to Probate as an informal Will. However, you must be aware of the additional costs that comes with submitting an informal Will and we would suggest that you first discuss your situation with a lawyer on the best approach to exercise.

Given, however, that there is an expected increase in fraud during the COVID-19 period, we would urge a cautious approach when making use of electronic communication and signatures. Until such time as the Court or legislation confirm the validity of an electronic Will, the willmaker should be encouraged to sign a hard copy Will as soon as it is possible again.

Can I use video conferencing to have my lawyer or another person witness the signing of my Will or a Power of Attorney?

In relation to the prospect of using video conferencing to witness documents, we can only consider existing authorities at present. At this stage, there are currently no legal authorities or precedents in Victoria that digital signatures or video witnessing will be accepted as a formal valid Will or Power of Attorney.

At this stage, we know that a Will should be executed ‘in the presence of’ two or more witnesses present at the same time. A relevant example might be a willmaker in isolation who has signed the Will, that signing was overseen by two witnesses who could view the willmaker through a glass window. The Will is then signed by the two witnesses and the willmaker is in a position where he/she can see the witness sign the Will. The willmaker must be aware that the document the witnesses are signing is the Will. The act of being present involves not only physical presence, but also mental awareness.

What if the person seeking to make a Will and/or Power of Attorney is in an aged care facility or hospital?

At this stage, the Australian Government directives in respect of aged care facilities are not to visit if you have:

  • returned from overseas in the last 14 days;
  • been in contact with a confirmed case of COVID-19 in the last 14 days; and
  • have a fever or symptoms of a respiratory infection such as a cough, sore throat or shortness of breath.

The Government directives require visitors who attend aged care facilities to take extra precautions when it comes to visit, including – making sure visits are kept short; allowing no more than 2 visitors, including doctors, at a time; making sure visits occur in a resident’s room, outdoors, or in a specific area they designate (there should be no visiting in communal areas); and after 1 May 2020, you must have had your influenza vaccination to visit an aged care facility. The usual washing of hands before entering and leaving a resident’s room and maintaining the 1.5 metres distance from residents where possible also apply. In saying that, it is important to note that individual hospitals may have implemented their own COVID-19 policies and it is therefore recommended that you contact the hospital for specific visitor information and restrictions.

Whilst it appears at this stage that lawyers may be able to attend aged care facilities, it is recommended that visitations are restricted unless absolutely necessary. What this means is that, lawyers may still be able to take Wills and Powers of Attorney instructions from clients, but probably through video conferencing. Visitations may be arranged purely for the purposes of signing and witnessing of the documents, if they cannot already be conducted internally within the aged care or hospital using medical support staff.

What if the willmaker is unable to sign the Will due to physical incapacity?

In this circumstance, the willmaker could direct a third party to sign their Will on their behalf. The act of signing on behalf of the willmaker must still be carried out in the presence of and at the direction of the willmaker. Appropriate attestation clauses may be added to the Will to record the circumstances of execution.

Similarly, with Powers of Attorney, if the principal is unable to sign their Power of Attorney, say by reason of physical incapacity, the principal can direct another person to sign on their behalf as long as this person is not a witness or an attorney. The Enduring Power of Attorney must include a certificate signed by the witness stating the principal signed the document in the witness’s presence.

We have an experienced team across Nevett Ford who are here to support you so please contact us should you need any assistance during this time.

As we move forward, we will keep you informed on any updates.  To those who are not feeling well, we offer our heartfelt wishes for a full recovery.  And to those clients who continue to work to keep society functioning, thank you.