Virtual witnessing of Wills and EPOAs – new Queensland Law

JUSTICE LEGISLATION (COVID-19 EMERGENCY RESPONSE – WILLS AND ENDURING DOCUMENTS) REGULATION 2020 (QLD) (See: https://www.legislation.qld.gov.au/view/html/asmade/sl-2020-0072)

As of 15 May 2020, the Queensland Parliament passed the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020[1] (‘the Regulation’) (set to expire on 31 December 2020).

This Regulation was introduced due to COVID-19 social distancing rules and the closure of the Justice of the Peace Community Programs and allows for the signing and witnessing of Wills and Enduring documents (e.g. Enduring Power of Attorney (‘EPOA’)) by measures other than the current strict requirements that these documents have to be signed in the physical presence of the witness (or in the case of Wills witnesses).

However, additional measures and requirements have been introduced for the witness in order to seek to ensure that these powerful documents are properly made by a person who has been identified, has capacity and in a manner free of duress.

How will virtual witnessing work?

Wills and EPOAs can now be witnessed by audio visual link (which includes videoconferencing) provided they are witnessed by a “special witness”. A special witness can be Australian lawyer, notary public, a Justice or Commissioner for Declarations approved by the chief executive, or a Justice or Commissioner for Declarations provided they are employed by the law firm (or Public Trustee) who created the documents and they witnessed the documents during the course of their employment.

There are prescribed requirements in the Regulations that must be followed including that a certificate must be signed by the special witness stating:

(a) that the document was signed and witnessed during the relevant period (namely, the period starting on the commencement and ending when the COVID-19 emergency period ends); and

(b) that the document was signed and witnessed in accordance with this regulation; and

(c) the steps the witness took to verify the identity of the signatory; and

(d) if a substitute signatory signed the document—

(i) the identity of the substitute signatory; and

(ii) a description of the direction given by the signatory to the substitute signatory; and

(e) if a substitute signatory was directed by the signatory by audio visual link to sign the document—the grounds on which the witness is satisfied the substitute signatory is permitted under section 13 to be a substitute signatory for the document; and

(f) the process followed for signing and witnessing the document; and

(g) that the special witness is a special witness; and

(h) whether an audio visual recording was made under section 26 of the signing or witnessing of the document; and

(i) any other matters the special witness considers relevant to the signing or witnessing of the document.

This special witness certificate must be kept with the witnessed document. 

Furthermore, the Regulation allows for a substitute signatory to sign a Will or an Enduring Document, on behalf of the signatory, at their request provided that the substitute signatory meets the strict Regulation requirements. For example section 17 of the Regulations specifies the following:

A document may be witnessed by audio visual link only if—

(a) if applicable, the witness observes the signatory direct the substitute signatory to sign the document; and

(b) the audio visual link enables the witness to be satisfied, by the sounds and images made by the link, that the signatory or substitute signatory is signing the document; and

(c) the witness observes the signatory or substitute signatory signing the document in real time; and

(d) the signatory or substitute signatory signs each page of the document (even EPOAs where this in not normally required); and

(e) the witness is satisfied that the signatory is freely and voluntarily signing the document or directing the substitute signatory to sign the document.

In order for these documents to be provided as evidence, should they ever be questioned, it is imperative that the steps in the regulations be strictly followed to ensure that virtual witnessing has complied with the new law.

Do you need a Will and/or EPOA during COVID-19?

Our Will making and Estate Planning lawyers have a number of options for you to help you make or update your Will or EPOA during this COVID-19 period. We can also utilise virtual witnessing of your documents. If you would like our assistance please contact us on 07 3252 0011.

Authors: Rebekah Penaia, Kyla Stehouwer and Andrew Lind


[1] https://www.legislation.qld.gov.au/view/pdf/asmade/sl-2020-0072

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