A cornerstone of the validity of a Will is that it must be signed by the Will-maker in the physical presence of two adult witnesses (section 11 of the Wills Act 2007). The witnesses must not be a beneficiary, or related to any of the beneficiaries, of the Will they are witnessing. The witnesses must each also sign the Will and identify themselves (by name, address and occupation).

A problem therefore arises around the execution of a Will during COVID-19 Alert Levels 3 and 4. Even during level 2, it may be difficult for vulnerable people to properly comply with the witnessing of a Will as they must remain isolated.

In response to this dilemma, Parliament has issued an Immediate Modification Order (IMO) under section 15 of the Epidemic Preparedness Act 2006. IMOs take the form of Orders in Council and essentially rewrite parts of the law where there is a statutory requirement or restriction that is impossible or impracticable to comply with during an epidemic.

The IMO related to signing and witnessing Wills is named the Epidemic Preparedness (Wills Act 2007 – Signing and Witnessing of Wills) Immediate Modification Order 2020 and came into force on 17 April 2020. This IMO amends section 11 of the Wills Act 2007 in that it allows Wills to be signed and witnessed using audio-visual links (Skype, Zoom, Facetime, etc.) in the following ways:

• Witnesses can witness the will-maker sign a copy of the Will by audio-visual link;
• Witnesses can also sign a copy of the document in front of the will-maker via audio-visual link;
• A person signing on the will-makers behalf pursuant to section 11(3)(b) can sign in front of the will-maker through audio-visual link from another place;
• Anyone that signs a copy of the Will must make it clear that they signed through audio-visual link because an epidemic notice is in force; and
• Photographs or scans of the signed copies of the Will must be sent as soon as practical to a person who has been chosen to hold the documentation. If a lawyer has been involved in preparing and witnessing the Will, they can hold the signed copies of the Will.

The changes described only apply to Wills made while the Epidemic Notice is in force. Once the Epidemic Notice for COVID-19 is lifted, the law will return to its pre COVID-19 position. You will not be required to make another Will after the COVID-19 epidemic ends as it is a valid will unless you want to change or revoke it.

In special circumstances, for example where you cannot get your Will signed and witnessed either in-person or by audio-visual link due to the restrictions you can get it signed and witnessed after the restrictions have ended. The Will may be written out on paper or typed up electronically so that the Will maker’s intentions on their death are made clear in writing. It is important to let the people you want to be witnesses know that you want them to witness your Will after the restrictions have ended. You should also make it clear in the Will that you cannot get it witnessed due to the epidemic.

This approach does not comply with the fundamental requirements of a valid Will. However, the Wills Act gives the High Court the power to make an order declaring a will to be valid even if it doesn’t comply with the formal requirements – but only if it is satisfied that the document expresses the now deceased person’s intentions. Potentially a difficult test to satisfy if the Estate is being contested.

If you need a will made then contact the Barter Law team.

This blog is published for general information purposes only and is not intended to constitute regulated services under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The blog posts should not be relied on as legal advice. If you require legal advice you should always contact a lawyer to provide you with specific legal advice on your situation.