NSW COVID-19 Update: Wills go virtual under laws
Written by Luke Musto, Associate
The NSW government has made new temporary regulations allowing for lawyers to use videoconferencing technology (such as Zoom, Skype, or Whatsapp) to witness the execution of legal documents during the Coronavirus pandemic. This includes for the execution of wills, powers of attorney and statutory declarations.
It is a bit of a morbid topic, but these confronting times have unfortunately reminded us all of how quickly circumstances can change and of our own mortality. For this reason, wills are currently in high-demand as many people move to either create a will or update their existing will. Sadly, around half of Australians either do not have a will, or otherwise their will is out of date (due to separation, having children, etc). This ultimately leaves what will happen to their estate when they pass away up to others.
In today’s post, we will discuss the new laws and the importance of having a will.
How do the new laws work?
Usually, for a will to be valid it needs two independent witnesses, who are not beneficiaries, to be present during the execution of the wills. For obvious reasons, this has become very difficult with the current social distancing restrictions.
The laws allow the signing of these documents to be observed in real time via video conferencing apps in order to satisfy the x2 witness requirements of the execution of wills. Once the person has signed the document, the witness will either sign an identical counterpart or a scanned version of the document in order to confirm they witnessed the signing. The original should then be sent to the lawyer for storage alongside the counterpart / scanned version.
The new laws allow people to update or put in place wills without needing to come into contact with people or leave their homes, something particularly important for people who are vulnerable to infection, such as the elderly.
Why is having a will important?
A will is a legal document in which a person specifies the way in which their estate will be handled following their death. There are a number of reasons for having a will, including:
- To give directions for dividing your estate between family, loved ones, or charity;
- To give instructions regarding your funeral;
- To permit for your body to be donated to science or your organs donated;
- To ensure your beneficiaries are protected in case of any adverse possibilities, such as marital breakdown, illness, etc;
- To address complicated family situations (particularly blended families);
- To properly distribute any shares of a company or partnership you may have;
- To repay loans incurred during your lifetime; and
- To ensure your wishes and instructions are clear and to reduce the risk of your will being challenged.
It is not hard to see why many people, in these uncertain times, are moving to get their “life-admin” in order, including by preparing a will.
Does everyone need a will?
While everyone can benefit from having a will in place, it is a particularly good idea to draft a will as soon as you have any assets, such as a house, shares or savings, or if you have a family. We recommend subsequently updating your will each time you reach one of life’s milestones, including getting married, having kids, separating from a partner, or buying a property.
To this end, while a will is very important for everyone, it is particularly critical for people in defacto relationships and blended families to have a will. This is because if someone in a defacto relationship dies without a will, their loved-ones will have the added burden and stress of having to meet the legal requirements for proving the relationship, at a time where they are already grieving.
What happens if I don’t have a will?
When someone dies without a will, this means they die “intestate”, meaning that legally speaking no one knows whom they wanted as their beneficiaries or executor. Dying intestate means that a pre-determined formula will be used to divide up that person’s estate. The simplest example is that in NSW, if a person dies without a will and they have a spouse who survives them by at least 30 days, then the spouse will automatically inherit the estate. This includes de facto relationships and operates regardless of whether the relationship bore any children. It should be stressed that this is the most simple scenario imaginable—for example, when children from previous relationships exist, things become immediately more complicated.
Where should my will be stored?
It is important that a will is able to be found when required. The original will should be kept in your solicitor’s office, and you should keep a hold of several copies for your records. Ensure that your loved ones are aware of your will and importantly, that they know who your solicitor is.
Aren’t wills expensive?
Having a well-drafted will is one of the most important documents for any person to have, but they definitely don’t have to be expensive from the right lawyer. The majority of wills are documents that are very cost-effective and quick to produce – and with the new laws, they are also easy to be made official.
Can I have an international will?
If someone owns assets overseas, it is possible to create an “international will” that will be accepted in most jurisdictions. An international will is a good idea if someone has most of their assets in NSW but then has a minor secondary bank account in another country. However, if someone has more substantial assets across more than one country, we advise making sure that a valid will is in place in each separate country.
The ongoing health crisis has served as a harsh reminder of how quickly the world and circumstances can change, and has prompted many people to reconsider their wills and estate planning, or otherwise to update them to ensure they remain current. Preparing a will can be an emotional task, but it doesn’t have to be complicated – a good lawyer will be able to streamline the process for you to ensure that your wishes are respected when you pass away, easing the trauma for your loved ones. If you are ready to create or update your will, get in touch with our experienced team today.
Harris Gomez Group is an Australian law firm with 25 years experience based in Sydney, with sister offices in Santiago and Bogotá. We specialise in business and corporations law, estate planning, and cross-border issues. We assist small to medium-sized Australian businesses with a variety of issues, including employment law, property law issues (such as rental contracts) and contract disputes.
To better understand how we can support you, please contact Harris Gomez at firstname.lastname@example.org
Our Sydney office is located at Level 7, 92 Pitt Street, Sydney NSW 2000.