Are you still open for business?
Yes, and we’re seeing a surge in enquiries via our website and by telephone about Wills and Powers of Attorney. I think a lot of people are taking the opportunity to work through their ‘boring but important’ list for peace of mind.
What changes have you implemented as a result of social distancing requirements?
We’re doing everything we can to help keep the community safe and healthy, as well as complying with all current Directives, so we’re meeting via teleconference or telephone where possible.
It’s currently permissible for people to leave their homes to obtain legal advice, so we have set up a signing area in our foyer with single use pens, and this area is carefully cleaned before and after each appointment. There’s also been plenty of home visits where documents have been signed on a front porch, or over the fence, or even through an open door or window.
What happens to a document if it’s not witnessed properly?
Powers of Attorney and Appointments of Medical Treatment Decision Maker are generally invalid if signed incorrectly.
An incorrectly signed Will (called an ‘informal Will’) might still be valid. However, the executors almost always incur extra expense because the Court requires an explanation as to why the requirements for signing a Will weren’t followed, usually via an affidavit from a witness. It can be expensive, and there’s no guarantee that the Court will grant probate of an informal Will.
What is probate?
‘Probate’ is the executor ‘proving’ that the Will is valid, and obtaining the Court’s permission to distribute the assets.
Can you make a Will via video?
Theoretically, yes! However, it would be expensive to satisfy the Court that the video recording should be treated as a last Will. We do not recommend it. A very recent case in the Victorian Supreme Court dealt with this exact issue, and the Court decided (after hundreds of thousands of dollars in legal costs) that the video recording was not a valid Will.
Trent McGregor is a Wills & Estates Lawyer at Robertson Hyetts Lawyers & Conveyancers and is available for appointments via telephone, video conferencing, and home visits. Please let him know if you would prefer to come into the office. To discuss your wills and estate planning with Trent, please contact our office on 03 5434 6615, or trent.mcgregor@robertsonhyetts.com.au
