Witnessing Wills During COVID (Qld)

COVID has changed many aspects of our daily lives. Many of us have adapted to the challenges of working from home and the associated technological hurdles. When it comes to making a will, one of these hurdles is getting the document signed in the presence of witnesses. This article deals with witnessing wills during COVID and refers to the 2021 Queensland Supreme Court decision of Re Sheehan.

Legislation on witnessing wills during COVID

The Succession Act 1981 requires two witnesses to be in the presence of the testator as they sign the will. However, it can be tricky to maintain social distancing measures when you need to cram a testator, two witnesses and a lawyer all in one small meeting room.

In 2020, the Queensland Government passed the COVID-19 Emergency Response Act 2020 and the associated Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulations 2020 (the “COVID Will Regulations”) to address this problem. This legislation has since been repealed, but other states still have similar legislation.

The COVID Will Regulations permitted the witnessing of wills via audio-visual link with certain safeguards. These new rules were slightly different to the normal will execution requirements. This created issues for Mr Stan Sheehan.

Witnessing wills during COVID: Stan Sheehan’s story

Issues that can arise when witnessing wills during COVIC were considered in the recent Queensland Supreme Court decision of Re Sheehan [2021] QSC 089. Stan Sheehan was diagnosed with brain cancer. In preparation for surgery, his friend and business associate, Mr Loveday, and his brother, Mr Noel Sheehan, arranged for a will and Enduring Power of Attorney to be made for him by a lawyer.

Sheehan could not make up his mind about the terms of his will, so continued to delay finalising it despite numerous follow-ups by his lawyer. It was only two days before his surgery that he informed his lawyer of his decision. She urgently prepared a will and emailed it to him that same day.

The day before his surgery, Sheehan and his lawyer had a Zoom meeting where the lawyer ascertained that Stan had testamentary capacity, that the will was the same document she had sent to him and that Stan understood its contents. She then watched as he appeared to sign every page of the will.

Noel Sheehan sent the lawyer a scan of the will later that day. At this point, she noticed that the fifth page of the will was not signed, and the schedule was not attached.

The lawyer quickly attempted to contact Noel and Stan to arrange to have the will re-executed. However, by the time she got a hold of Noel, his brother had already gone in for his surgery.

Stan Sheehan died as a result of the surgery.

Will can be recognised despite formal defects

Due to the mistake in executing Sheehan’s will, the executors, Mr Loveday and Noel Sheehan brought an application under Section 18 of the Succession Act 1981. This section grants the court a discretionary power to dispense with the formal will requirements and recognise a document as the deceased’s will despite the non-compliance with the formal requirements. This case was to be the first test of the new COVID Will Regulations.

The will would have complied with the formal requirements of section 10 had it been witnessed physically in the usual way. There is not usually a requirement that every page is signed.

When deciding whether to recognise an informal will, the court will consider:

• Whether there is a document;
• Whether that document contained the deceased’s testamentary intentions; and
• Whether that document was intended as the deceased’s last and final will.

For the court to recognise an informal will, there must be some evidence of some words or acts that demonstrate that the deceased intended the document to act as their last will without further action. Therefore, preliminary, tentative or partially complete documents will not suffice.

In addition, the onus to prove that the deceased had testamentary capacity shifts. The deceased is presumed to have capacity when a will is formally executed. However, a will under section 18 requires the person applying for probate to prove capacity.

In Stan Sheehan’s case, the lawyer recorded the Zoom meetings. The court was satisfied that the document was intended by Sheehan as his last will and testament because it was clear that he thought he was executing a will in accordance with the requirements. Further, the lawyer had asked questions to establish that his client had the necessary capacity. Accordingly, the court provided a Grant of Probate.

The decision in re Sheehan

Sheehan’s will was upheld despite the formal error. However, had his lawyer not been so careful as to ask the right questions and record everything, he might not have been so lucky. The risk could have been avoided entirely had the will been executed well in advance, granting time to correct any errors. When anything to do with the execution of a will is rushed, there is greater opportunity for mistakes and less opportunity for corrections.

Had Sheehan been more prepared and arranged a will earlier, the mistake probably would have been noticed and corrected and there would have been no need to go to court. Many people do not want to think about making a will until they really need one. However, this can have disastrous consequences.

If you require legal advice or representation in a wills and estates matter or in any other legal matter, please contact Armstrong Legal.