The COVID-19 pandemic has created witnessing and logistical challenges for signing of Wills and Powers of Attorney. In response to this, the Victorian Government introduced regulations to provide temporary emergency measures to allow Wills and Powers of Attorney to be signed electronically and witnessed remotely.

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) (“the Regulations”) were introduced on 12 May 2020. The Government recently announced that the emergency regulations would be extended until 26 April 2021.

What are the pre-pandemic rules for signing Wills and Powers of Attorney?

In Victoria, there are strict requirements for witnessing of Wills and Power of Attorney.

Both Wills and Enduring Powers of Attorney must be signed by the person making the document in the presence of two adult witnesses. In the case of an Enduring Power of Attorney, one of the two witnesses needs to be an authorised witness such as a lawyer or medical practitioner.

What do the temporary regulations permit when signing Wills and Powers of Attorney?

The Regulations assist in addressing the document signing and witnessing challenges that have arisen as a result of the pandemic. Specifically, problems have arisen where important documents, which includes Wills and Powers of Attorney, need to be signed in the physical presence of witnesses.

The Regulations allow remote witnessing of certain documents and electronic signatures.  

The execution of a Will, codicil or other ‘testamentary writing’ by a Will maker in the presence of a person, for the purposes of the Wills Act 1997 (Vic), may now occur where parties are present by audio-visual link.  The Regulations set out the conditions and requirements for executing your documents using an audio-visual link.

Enduring and non-enduring Powers of Attorney and supportive attorney appointments can also be signed and witnessed by audio-visual link for the purposes of the Powers of Attorney Act 2014 (Vic). Again, there are conditions and requirements set out in the Regulations.

What conditions must be met when signing your documents

1.  The witnesses must observe the principal (the Will-maker or the person making the Power of Attorney) sign the document either electronically or on hard copy (and the signature of any witnesses physically present).

2.  A copy of the document must then be transmitted, for example by email or fax, to the first remote witness. The remote witness must:

1. sign either electronically or on a printed hard copy;
2. write a statement that the document was witnessed via audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020; and
3. transmit a copy (for example by email or fax) to the next remote witness (if any), who repeats these steps.

3.  A copy of the document signed by all witnesses must be returned to the principal. The principal must write on that copy a statement that:

1. the copy is a true copy of the document signed by the person; and
2. the conditions in the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been met.

4.  The principal must sign and date that statement.

The result is that there is one copy of the Will and/or Power of Attorney on which all the signatures and statements appear. This copy is the final Will. In the case of the Power of Attorney, the attorneys must still sign the document for their appointments to be valid.

The above steps must all occur on the same day.

What audio-visual options can I use to execute my documents?

The Regulations define an audio-visual link as “facilities (including closed-circuit television) that enable audio and visual communication between persons at different places”.

The Regulations do not specify a particular platform that needs to be used. Commonly used platforms such as Zoom, Microsoft Teams, Facetime, WhatsApp, Skype or Webex, which allow real-time video conferencing, will suffice.

In many instances, the signing and witnessing of important documents by conventional means may be preferable, where possible. However, for high-risk individuals, people who wish to continue self-isolating or people who are limited in their movement, the

Regulations offer contact-free signing and witnessing of important estate planning documents during the pandemic.

Can I use remote witnessing for an Appointment of Medical Treatment Decision Maker?

The Regulations do not allow for Appointments of Medical Treatment Decision Makers to be witnessed remotely. These will need to be witnessed and signed the traditional way.

Get help

At Emera Smith, we are continuing to offer our Wills and Power of Attorney services to existing and new clients.

During the current ‘Stay at Home’ restrictions in Victoria, we are following the emergency regulations and are able to facilitate electronic and remote signing and witnessing of Wills and Enduring Powers of Attorney via Zoom. Clients will need to be able to participate in an audio-visual link and be able to ‘transmit’ the signed document to the witnesses, such as using a scanner or scanning app.

Once the current ‘Stay at Home’ restrictions are lifted, we will resume our face to face Wills and Estate services, including an in-person meeting at one of our offices to execute and witness your documents.

We will be guided by Government directions, observe social distancing guidelines and maintain good hygiene measures, such as having hand sanitizer available for your use when you arrive and before you leave.

For our clients who wish to have a contact-free experience and sign their Wills and Enduring Powers of Attorney electronically after the ‘Stay at Home’ restrictions are lifted, Emera Smith will continue to offer remote signing services to clients as long as the Regulations permit us to do so.