The COVID-19 social distancing and quarantine restrictions are making many tasks more difficult. In an attempt to reduce the logistical challenges of having certain essential legal documents witnessed, the Chief Justice of the Supreme Court and the Registrar of Titles have released directives regarding the temporary relaxation of witnessing requirements for Wills and Titles Registry forms respectively.
Under normal circumstances, a Will needs to be signed in the presence of two witnesses. Normally, if a Will is not signed in the presence of two witnesses, an application to a Judge of the Supreme Court is required in order to declare a Will valid under the Succession Act 1981 (Qld). The hearing of an application before a Judge can be a very expensive and time-consuming process.
Under the Supreme Court Practice Direction released on 22 April 2020, if a Will is signed between 1 March 2020 and 30 September 2020 and:
- The Will was drafted by a solicitor, or a solicitor is one of the witnesses to the Will, or the person supervising the execution of the Will; and
- The person making the Will intended that the document be their Will; and
- The person signed the Will in the presence of one or two witnesses, who witness the signing via videolink (eg Skype, Zoom or Facetime); and
- The witness/es were able to identify the document executed; and
- The reason that the person making the Will was unable to sign in the physical presence of two witnesses was because of isolation or quarantine arising from the COVID-19 pandemic;
then a Supreme Court Registrar, rather than a Judge, can decide an application to declare the Will valid. This allows for a much cheaper and faster court process, without the need to argue the case in front of a judge. Evidence must be filed with the Court which proves points 1 to 5 above in order for a Will to come within the scope of the Practice Direction.
An essential prerequisite for a Will to come within the ambit of the Practice Direction is for a solicitor to be involved in the drafting or witnessing of the Will. If you wish to make a Will while you are subject to quarantine or self-isolation and you are unable to physically sign your will in the presence of two independent witnesses, it is imperative that you obtain legal advice in order to ensure that your Will is valid and to minimise the potential expense to your estate.
Titles Registry Forms
Titles Registry forms signed in Australia must be witnessed by a Justice of the Peace, a Commissioner for Declarations, an Australian Lawyer, a Notary Public, a licensed conveyancer from another State or another person approved by the Registrar of Titles. Ordinarily, Titles Registry forms need to be signed in the physical presence of the witness. On 6 April 2020, the Registrar of Titles published new guidelines in response to the COVID-19 pandemic. These guidelines will apply until further notice, and relax the requirement for Titles Registry forms to be signed in the physical presence of the witness where:
- Reasonable steps have already been taken by the witness to verify the identify of the person signing the form; and
- The witness is an Australian legal practitioner or a qualified witness employed by a law firm or financial institution.
If (i) and (ii) above are met, a person may have their signature on a Titles Registry form witnessed via videolink (eg Skype, Zoom or Facetime) by following the procedures set out in the guidelines. Once signed, the original document should be posted or delivered to the witness, who can then sign the original form as witness. If delivery of the original is not possible, the witness may sign a scanned or photographed copy of the Titles Registry form. Photography of forms should only be used as a last resort, to ensure the quality of the imaging.
In exceptional circumstances, where none of the above options are available and it is not possible to delay the signing of a Titles Registry form, the guidelines allow for a person’s legal representative to sign the form on that person’s behalf. The legal practitioner must make written submission to the Registrar of Titles prior to lodging the form that they signed on behalf of their client, requesting the Registrar to exercise their discretion to accept the execution of the document by the legal practitioner in lieu of their client. This option is fraught with uncertainty and should only be applied if none of the other options is possible.
How can we help?
While the Supreme Court and the Titles Registry are endeavouring to find practical solutions for having documents signed in the physical presence of witnesses during COVID-19, the alternatives allowed for in each instance are quite technical. In both cases, it is essential that a legal practitioner or employee of a law firm or financial institution be involved in the witnessing process. If you intend to make a Will or sign Titles Registry forms during the pandemic, it is essential that you take legal advice and that you plan the signing of any necessary documents as far ahead as possible, in consultation with your solicitor, to ensure that the documents can be validly signed without compromising your safety or breaching any isolation or quarantine restrictions. Our experienced team of property and succession lawyers would be happy to assist you to navigate this process as safely and practically as possible.