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Can a Will be made from within the Covid-19 virus enforced bubble of self-isolation and social distancing? Extreme events call for extreme challenges and measures no more so than for making a Will right now when the testator is in isolation and no independent witnesses are in the room. Clearly an issue particularly for someone elderly or ill and delay is a concern.
By the Wills Act 2007 (Section 11) a valid Will is one signed by the testator in the presence of two witnesses who sign in the presence of each other. Visibility and the ability to see was held as the test of "presence" in an old case called Casson v Dade (1781) 28 ER 1010 where a testatrix after signing her Will in the office of her solicitor before two witnesses, retired to her coach outside as a relief for her asthma. The coach being accidently parked so as to command a view of the interior of the solicitors office, it was held the witnesses had signed in her presence.
The social distancing rules of two metres should allow presence. So would arranging for the signing to occur at the local supermarket carpark be the way? Maybe. But it will not necessarily be for the elderly and ill. Not to be forgotten of course are the risks for lawyers and independent witnesses of contracting the virus (unless dressed in the 2020 TAR C.B.R.N. protection suit). Apparently Coronavirus is able to survive on paper for up to 12 hours therefore transferrable just by handling the document.
Complicating further is the lawyer's ability to assess and record mental capacity, and obtain where appropriate comment on that from a doctor.
Technology such as Skype, Zoom and Face Time may assist. However, electronic signatures will not make a Will legally valid.
Now what? Well if you are in a situation of wanting to record your testamentary wishes and doing so in the best way possible to have them upheld by the High Court, there is always Section 14 of the Wills Act 2007 which permits informal and non-compliant Wills to be validated by the High Court. Care in that regard is the utmost importance. If you are in such a situation we may be able to help.
Please direct all enquiries to:
Peter Fuscic on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz)
See our Expertise pages
Wills and Enduring Powers of Attorney
© McVeagh Fleming 2020
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.
