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How to make a will during the Covid-19 pandemic

Thursday 24 February 2022

In response to the COVID-19 pandemic, the Government temporarily modified the requirements for signing and witnessing wills under the Wills Act 2007.

The modifications are set out in the Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order 2020 (the ‘Wills IMO’). The modifications are temporary and will revert to normal when the Epidemic Notice is lifted.

Wills made while the Epidemic Notice is in force is a valid will. The will-maker does not need to make another will unless they want to change or revoke their will.

Remote Signing and Witnessing allowed during the Pandemic

Will-makers can meet the signing and witnessing requirements to make a valid will by audio-visual links from one or more places (e.g., Zoom, Skype, Whatsapp, Messenger, etc). Wills can still be made even if a will-maker does not have two suitable witnesses present in person.

Note that audio-visual links (instead of just audio links) are required because we must be able to sight and verify the person signing the documents. This means that clients must have access to the necessary technology in order to make a valid will remotely.

If you cannot get the will witnessed remotely or in person, the High Court can make an order declaring a will is valid even if it does not comply with the formal signing and witnessing requirements. However, the Court will require clear evidence to satisfy that the will expresses the deceased person’s intentions. Please discuss with us if you are considering this option, as it is vital that appropriate evidence is retained.

Overseas will-maker’s movable property

Section 22(5) of the Wills Act 2007 states – a will must comply with the requirements prescribed under the law of the place where the will-maker was domiciled when the will is made if the will:

  1. deals with movable property (including proceeds from the sale of land in New Zealand); and
  2. was made outside of New Zealand.

Clients who reside overseas and are not able to travel to New Zealand must comply with the law of the place where the will was made if the will deals with movable property.

What happens if you do not have a will?

If you have not made a will before you die, then your estates will be administered in accordance with the default provisions under the Administration Act 1969. These default provisions may not be consistent with how you want your estates to be distributed after you die so it is important to specify your intentions in a will.

The process of making a will remotely is more involved than making a will in person. It would pay to ensure your will meets the requirements that are set out in the Wills Act 2007 and the Wills IMO. We have systems in place to comply with these requirements of remote signing and witnessing of wills while the Epidemic Notice is in force. Please contact us to discuss your circumstances.

This article is for general use only. Advice should be sought for specific circumstances. Please consult Teresa Chan at Teresa Chan Law Limited, Level 3, Westpac Building, 106 George Street, Dunedin 9016, ph. 477 1069, or email teresa@tchanlaw.co.nz

KEYWORDS: Wills, COVID-19, remote witnessing, estates.
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