The Challenges of Estate Planning in the COVID-19 Landscape

Given the current challenges and uncertainties as a result of the COVID-19 pandemic, we have experienced an increase demand for our services in relation to estate planning, particularly in preparing or updating Wills, Enduring Powers of Attorney and Enduring Powers of Guardianship.

Some of our clients are also looking at buy-sell arrangements in the context of business succession planning.

In relation to preparing Wills, lawyers are ethically obliged to “meet with” clients as part of the process of obtaining instructions, in part, to ensure that we obtain proper instructions, but also so that we can assess a client’s legal capacity to make a Will.

In the current climate of social distancing, it remains possible for us to obtain instructions “face to face” with our clients through video conferencing.

The greater challenge is in having the final documents executed.

The Wills Act 1970 (WA) provides that a Will is not valid unless it is signed by the will-maker and two witnesses who also sign in the will-maker’s presence. In other words, there must be a physical gathering of three. This entrenches a long-held requirement in the law to prevent fraud and forgery, particularly because when the time comes to prove the Will for the purposes of obtaining probate, the will-maker is (obviously!) no longer able to speak for themselves. Of course, when the Wills Act was written, the legislators did not foresee the reach of today’s technology.

With current restrictions in place in relation to gatherings, there may be a need for legislative changes to allow the execution of Wills by less stringent means.

In New South Wales, for example, there is legislation to allow regulations to be made to alter the legal requirements for the signing of documents. As far as we know, there is no equivalent legislation in Western Australia.

It is, of course, possible to make an informal Will. The wishes of the will-maker could be documented; and evidence be kept that the document was intended to operate as a Will. There have been cases that a video of a will-maker’s wishes or a text message may constitute a Will. Some have suggested creative means of signing a Will, including having witnesses “attend” by video conferencing and a recording made of the “signing ceremony”.

However, there is some risk to proceeding in any way other than contemplated by the Wills Act as it will then be left to the Court to (eventually) decide whether the informal Will should be given effect. It is certainly open to greater challenge and costs to the estate.

Until such time as the law is changed (even temporarily in the midst of the COVID-19 crisis), we consider that it is more prudent to proceed on the basis of a physical signing in the presence of two witnesses with appropriate social distancing. Munro Doig continues to be able to attend to witnessing Wills, either at our office or by other arrangements with our clients.

If you or your client are looking to update their Wills and estate planning documents, please contact us to discuss your needs.