Need a new will ? Witnessing wills during Covid-19 in Western Australia

In Western Australia for a Will to be valid:

• the Will must be in writing
• the person making the Will must have "testamentary capacity"
• the Will must be signed by at least two witnesses in the presence of the person making the Will.

The last requirement may be difficult to satisfy during the Covid-19 emergency period, particularly in places where there are prohibitions on people leaving their homes i.e. lockdowns.

In some jurisdictions, emergency Regulations have been quickly introduced by Governments to get around the difficulty in achieving face to face witnessing. For more details of the approaches taken in New South Wales, Queensland and New Zealand, our associate firms Swaab, Bennett & Philp and Martelli McKegg have written interesting articles on the subject. Click on their names for more details.

There are no new emergency laws in Western Australia dealing with witnessing of Wills - yet- and so the third requirement still applies. Execution of a Will in Western Australia cannot be witnessed remotely e.g. via videoconference. Similarly, digital signing of a Will is unlikely to be legally effective, and is certainly not advisable.

However, the WA Attorney General the Hon John Quigley MLA has acknowledged the important work of the legal profession, saying in correspondence to the Law Society of Western Australia “I have no doubt that Law Society members are providing essential services to the community during this difficult time.” (more details are here). Further, the West Australian Government’s Prohibition on Regional Travel Directions provides that people performing an "essential service" includes those with specialist skills “required for industry or business continuity and maintenance of competitive operation, where the service is time-critical”.

Our view is that preparing and witnessing Wills is an essential, time critical service, particularly for those concerned about Covid-19. This means that you are able to meet with a solicitor in-person for the purposes of executing a Will. Moreover, in Western Australia strict lockdowns have not been implemented, and so attending your solicitor's office is generally not prohibited. 

Our Perth and Geraldton offices are open for business. Some of our staff are working remotely, and the remainder are working in our offices as usual.

We generally prefer videoconference meetings, for the moment, to take Will instructions. We can organise Skype, Zoom, Blue Jeans, Microsoft Teams, Facetime, Webex or other online meetings as needed. Please note that we cannot take instructions to prepare a Will from a person who is not the person making the Will (the testator), so we must be able to speak with them directly, and preferably alone. We must be able to satisfy ourselves that they are speaking without any pressure or undue influence from someone else. We must also satisfy ourselves that they have sufficient mental capacity to give us Will instructions.

For witnessing Wills, we will work with our clients to satisfy the legal requirement to witness signing of a Will. In this regard, we are complying with the Department of Health's recommended measures to reduce the risk of Covid-19 transmission. These guidelines are being regularly updated as the circumstances evolve, and include practising good hygiene and social distancing.

In some cases, these guidelines will prevent us from being able to witness execution of Wills. In other cases, we can arrange in person witnessing. It is not legally necessary that all signatories use the same pen. It is also not legally necessary that all signatories be physically close to each other - witnessing is valid provided all signatories can see each other sign.  

Of course, anyone required to socially isolate - including those diagnosed with COVID-19, awaiting test results for COVID-19, who have been in close contact with a confirmed case of COVID-19, or who have arrived in Australia after midnight on 15 March 2020 - will not be able to attend our office.

At the time of witnessing a Will, we always need to ensure that a person signing the Will understands what they are signing and are signing of their own free will. This is a legal requirement. 

If a Will cannot be witnessed in compliance with the above legal requirements, it may still be possible to establish the validity of the Will via a Court process.

For further information or to arrange a new Will please contact Michelle Hankey or Cassandra Bailey in our office.

This article is general information only, at the date it is posted.  It is not, and should not be relied upon as, legal advice.  This article might not be updated over time and therefore may not reflect changes to the law.  Please feel free to contact us for legal advice that is specific to your situation.

Clarifying the ability of trustees to expand their powers: the decision in Re Application of Country Road Services Pty Ltd

In this article (published in the December 2019 edition of the Law Society Brief magazine) Jonathan Haeusler, Special Counsel, and Michelle Hankey, Solicitor, discuss the court’s decision in Re Application of Country Road Services Pty Ltd [2019] NSWSC 779 regarding a trustee’s role and their ability to expand their powers as trustee. 

The trust instrument that created a trust is the primary source of the trustee’s duties, obligations and powers.  A trustee’s primary duty is to administer the trust in accordance with the terms of the trust instrument.  If a trustee acts outside the terms of the trust instrument, the trustee’s acts will be "ultra vires" i.e. invalid.  In certain circumstances, a trustee may apply to the court for, among other things, an order conferring additional powers on the trustee where it would be “expedient in the management and administration” of the trust property to do so.

However, a trustee cannot seek additional and new powers so that it might administer the trust in a different way from that contemplated in the trust instrument. The trustee should not seek to question the terms of the trust or seek to improve them.

The court’s decision in Re Application of Country Road Services Pty Ltd serves to remind us of the trustee’s function in making applications to the court for orders conferring additional powers on trustees.  In particular, the court’s observations remind us that the trustee’s role is to administer the trust in accordance with the terms of the trust instrument, not to seek to change the trust instrument.  Further, that the usual role of a trustee should be one of neutrality.  

The key take-aways from the court’s decision are set out in Jonathan’s article, which is available here.  

If you have any queries regarding trust administration, please contact Jonathan Haeusler or Michelle Hankey of our office. 

This article is general information only, at the date it is posted.  It is not, and should not be relied upon as, legal advice.  This article might not be updated over time and therefore may not reflect changes to the law.  Please feel free to contact us for legal advice that is specific to your situation.