Estate Planning & The Coronavirus

One of the many concerns of our clients that have been highlighted by the Coronavirus relates to their own individual estate planning and that of their families.

Up to date documents

There are many aspects of estate planning requiring up to date documents to be in place including;

  • Wills – clearly the Coronavirus has and will continue to impact vital aspects of an individual’s will such as;
    • the nature and value of estate assets;
    • the appropriateness of who should be the executors named in the will;
    • the bequests /distributions made under the will to various beneficiaries
    • the link between business and superannuation assets, trusts etc and estate assets;
    • family law considerations; and
    • asset protection considerations.
  • Enduring powers of attorney and appointments of medical decision maker – with financial, lifestyle and medical decisions likely to be required to be made during this difficult and often stressful time, it is essential these documents be available to be invoked when needed.
  • Binding Death Benefit Nominations – a fact which is sometimes missed, is that superannuation proceeds do not necessarily form assets of the estate. A valid binding death benefit nomination will ensure superannuation proceeds end up with the intended recipient.
Some Coronavirus observations

An article in the Melbourne Age dated April 15, 2020 headed Lawyers find creative ways to sign papers in will rush makes interesting reading as it highlighted;

  • The increased demand by people wanting to change their wills or powers of attorney during the pandemic;
  • Some novel and creative ways lawyers have arranged for the witnessing of documents – for example; through car windows, over back fences and through hospital glass windows;
  • The Law Institute of Victoria having called on the state government to amend legislation to allow the signing of documents over video-conferencing.

In our own practice we have witnessed documents at different locations such on client’s verandas /backyards ensuring we bring hand sanitisers along to the witnessing particularly when using the same pen and acknowledging safe keeper guidelines!

Formal requirements with document signing and witnessing

As a reminder, there are various formal requirements in the signing and witnessing of estate planning documents.

Our experience has been that clients who do not seek expert guidance or advice on such requirements sometimes discover that the documents have not been executed/ witnessed properly. The end result is that what should normally be a straight forward process ends up being more complicated and costly and possibly meaning the documents are invalid.

The use of “DIY will kits” can sometimes have adverse consequences for these very reasons.

The Coronavirus has presented some additional challenges such as;

  • Taking instructions, assessing capacity and arranging the signing of documents by people who are unwell or in isolation;
  • The requirement that a will must be witnessed by 2 persons in the presence of the person making it. As the article stated this creates difficulties for people in isolation. It is not easy sometimes just to ask neighbours to be witnesses;
  • The requirement that one of the witnesses to powers of attorney and appointment of medical decision makers must be “qualified” (for example, a lawyer or medical practitioner);
  • The fact that is not currently possible to witness a will or an enduring power of attorney by means of video conferencing or telephone;
  • There is no legal authority that wills and enduring powers of attorney are able to be validly executed electronically /by digital signatures.
Summary

The Coronavirus has thrown up many challenges in Estate Planning.

In the above article State Attorney – General Jill Hennessy in confirming that the provision of legal services, including those related to wills and powers of attorney was a necessary service is quoted as saying “We are considering options to enable alternative methods to finalise legal documents that currently require execution in person”

We await news of any government decisions on these issues.

In the meantime, we at Asparq Legal have adapted our practices and, although there are challenges, we are able to advise and guide clients on estate planning matters through these unprecedented times.


Updated information as of May 15 2020

Since this article was published the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been introduced. Read our update here: Update on Signing & Witnessing Legal Documents During COVID-19


Disclaimer: The information contained herein is of a general nature only and is not intended to be relied upon nor is it a substitute for appropriate professional advice. Whilst all care has been taken in the preparation of the material, it is not guaranteed to be accurate. Individual circumstances are different and as such, require specific examination. Asparq cannot accept liability for any loss or damage of any kind arising out of the use of or reliance upon all or any part of this material. Additional information may be made available upon request.