A consequence of social distancing has been the inability to execute Wills, Enduring Powers of Attorney and Enduring Guardians so they are legally enforceable. The reason is that it was a requirement that:

  1. a Will had to be witnessed by two independent people over 18, all in the same room at the same time; and,
  2. an Enduring Power of Attorney and an Enduring Guardian had to be witnessed by an Australian legal practitioner or a Registrar of the Local Court or an overseas-registered foreign lawyer or an approved employee of NSW Trustee and Guardian or the Office of the Public Guardian.

However, a recent change to the NSW’s legislation now allows Wills, Enduring Powers of Attorney or Enduring Guardians (“estate planning documents”) to be signed and witnessed remotely and be legally enforceable. The legislation provides for this to be achieved with the use of appropriate video technology, such as such as Zoom, Facetime, WhatsApp etc.

The way we are dealing with this for our clients is:

  1. we have a telephone or Zoom conference to take your instructions;
  2. we then prepare a draft which we email to you for your consideration and approval;
  3. we then arrange a zoom conference where we have two witnesses from our office together on our end with one copy of your estate planning documents, you are at the other end with a second copy of your estate planning documents;
  4. then, in real time, we witness you sign your original copy of the estate planning documents, we then sign our original copy of the estate planning documents;
  5. you then get your original copy of your estate planning documents to us by post or delivery; and
  6. when we receive your original copy of the estate planning documents, we place both original copies together to create legally binding estate planning documents.

The same process can be used to execute a legally enforceable, deed, agreement, affidavit or statutory declaration.

Please do not hesitate to contact us at any time should you have questions or require our assistance.


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