Electronic witnessing of Wills is here to stay

The 2020 COVID-19 lockdowns were the catalyst for a number of innovations in the legal system, and now the electronic witnessing of Wills has become permanent. The Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 came into operation on 26 April 2021, and it creates the permanent provision for remote witnessing of Wills. The Act also introduces a new procedure with specific terminology related to remote witnessing.

If remote witnessing is used, three parties must be involved in the process: the Will-maker, an Ordinary witness (over the age of 18, and not a family member) and a Special witness (a lawyer or Justice of the Peace). The final, formal Will is the last version signed by the Special witness who has checked that the process has been followed correctly. All parties must be able to see each other’s signature during the remote witnessing, and all parties must consent to the signing being recorded.

This process will allow for greater flexibility for signing emergency Wills and also for Will-makers who may live interstate or who are travelling. However, there is a stringent process which must be followed exactly in accordance with the Act. Because of the significant additional requirements, the usual in-person process for Will signing is encouraged in most circumstances. These legislative amendments will provide new options in a post-COVID world.

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