Legal Update: Witnessing of Wills during COVID-19

What is needed for a will be to valid in Western Australia?  4 things:

  • it is in writing; and
  • it is signed by the person making the will (called the testator) or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will; and
  • the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
  • the witnesses attest and subscribe the will in the presence of the testator (i.e. sign the will with the intention of affirming as true, that the testator signed or acknowledged the signature in the witnesses’ presence).

Social distancing restrictions because of COVID-19 has presented unique challenges to the witnessing of the signing of wills. 

While states including New South Wales and Queensland have enacted legislation which temporarily allows the witnessing of the signing of wills by way of audio-visual technology, no such legislation have been enacted in Western Australia.  We understand that the Law Society of Western Australia has taken the view and recommended to the Law Council of Australia that there is no need for emergency measures in Western Australia for the witnessing of the signing of legal documents such as wills.  Consequently, we anticipate that there will be no changes to the laws in Western Australia regarding how the signing of wills are to be witnessed. 

As such, in Western Australia, the law remains that for a will to be valid, the signing of the will by the testator has to be witnessed by 2 persons who are physically present at the same time. 

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