Here are some useful notes by Antunes Lawyers.

WHEN MAKING A WILL, APPOINTING ENDURING POWERS OF ATTORNEY AND ENDURING GUARDIANS

1 APRIL 2020

COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 passed on 24 March 2020 includes a regulation-making power to allow for Wills, Enduring Power of Attorney and Appointments of Enduring Guardians to be executed in a manner other than the way they are currently required to be signed and witnessed.

Until such regulations are enacted, the formal requirements remain. They are:

For Wills:

  1. The will-maker should sign each page of the Will and date the Will in the physical presence of two independent witnesses (who are over 18 years and the witnesses should not be a person named in the Will in any capacity);
  2. The two witnesses should sign each page of the Will following the will-maker’s signature and should print their names and addresses on the last page of the will so that the witnesses can be identified.

These formal requirements are becoming increasingly difficult to adhere to as the Government imposes more restrictions on the way we conduct ourselves in the community.

For some people, meeting the formal requirements may not be possible at all.

If the formal requirements cannot be met, due to the current circumstances then you should still sign and date the document as your Will. This will be classed as an “informal will” and the Court may admit an informal will for a grant of probate provided:

  1. It is a ‘document’ and it sets out the will-maker’s wishes and intentions for what he/she wants to happen to his/her estate in the event of his/her death; and
  2. The court is satisfied that the will-maker intended the document to be his/her will.

It is best practice to obtain legal advice and have a lawyer draft your will for you to ensure your wishes are met and to avoid your will being exposed to misinterpretation or litigation.

Appointing an Enduring Power of Attorney

  1. The document is required to be signed by you and physically witnessed by a ‘prescribed witness’ (usually a lawyer or a licensed conveyancer).
  2. Your appointed attorney can sign the document without a witness.

If you need to revoke an Enduring Power of Attorney and you have the original document in your possession, you can physically destroy the original document. You must notify your attorney that you have revoked the appointment (preferably in writing).

Appointing an Enduring Guardian

  1. The document is required to be signed by you and physically witnessed by an ‘eligible witness’ (usually a lawyer);
  2. Your appointed guardian is also required to sign in front of an eligible witness (usually a lawyer).

Revoking an enduring guardian needs to be in writing and witnessed by an ‘eligible’ witness and a copy of the revocation must be provided to the guardian.

At Antunes Lawyers, we are taking proactive steps to prioritise these important documents for our clients while ensuring the health and wellbeing of our clients and staff remains of utmost importance.

We have implemented alternative informal arrangements for people who can no longer come into our office to formalise a Will, Enduring Power of Attorney and Enduring Guardians.

Author: Claire Shulver

If you need to update your Will, Appointment of an Enduring Power of Attorney and/or Enduring Guardian, please contact our Estate Planning team today at enquiries@antunes.com.au or phone us today on 02 9964 0499.

The articles on this website comprise legal general information and not legal advice. The general information presented here must not be relied upon without legal advice being sought. In the event that you wish to obtain legal advice on the contents of this general information you may do so by contacting our office or your existing solicitor.