Best to sign again after lockdown to avoid later complications
During the COVID lockdown, special rules applied to the signing of some legal documents. Obviously it was, and is, not possible to have your signature witnessed by someone outside your bubble in Levels 3 and 4. So the law allowed signing over audio-visual link (AVL) and other similar arrangements. While these documents will remain valid in the future, it may be wise to have wills and enduring powers of attorney (EPAs) signed out of lockdown to avoid any time-consuming queries later on.
Many legal documents need to be signed in a particular way or before a particular person. For example, some documents such as affidavits must be signed in front of a JP or lawyer. As this was, and is, not possible during lockdown, special rules were put in place to enable people to sign documents such as wills, EPAs, affidavits and so on.
The Epidemic Preparedness Act 2006 had anticipated that some special changes might be needed depending on the nature of any emergency that might arise. This meant that while an Epidemic Notice is in force, special regulations can allow documents to be witnessed by AVL. The Epidemic Notice came into force on 25 March 2020 and was renewed later so that it will not expire until 24 September 2020. This does not mean that documents signed under the special regulations will not continue to be valid after 24 September 2020. It just means that the special dispensations from strict requirements for witnessing documents will no longer apply after 24 September unless the Notice is renewed again.
Witnessing documents
Normally a will, in order to be valid, must be witnessed by two people neither of whom benefits under the will. The will-maker and both witnesses all need to be together at the same time and see each other sign. During the period while the Epidemic Notice is in force, it is possible for all three people to be in different places and to see each other sign using an AVL[1]. That means each person signs a different copy of the will. But all three copies will together make up one document.
Similarly, EPAs can be signed using an AVL. The witness to an EPA needs to be a lawyer or qualified legal executive[2]. The special regulation[3] allows the donor of the EPA to sign in a different place from the lawyer or other person witnessing the EPA. Similarly, each of the attorneys can sign in a different location from the person witnessing the attorney’s signature. Effectively each of these people will be signing a different copy of the EPA but together all of these copies will make up one legal document. Similar rules apply to signing affidavits and affirmations[4].
Arrangements have also been made for some court hearings to be conducted remotely by AVL during lockdown.
How long will the documents last?
Even after the Epidemic Notice has expired, documents signed using the special arrangements put in place remain valid. From a purely legal point of view, there will be no reason to have to sign any of these documents again.
There may, however, be some difficulty later on in establishing that the document was correctly signed in accordance with the regulations. As time passes, memories fade and at some time in the future it may be difficult to remember exactly what was required for signing a will or an EPA during lockdown.
If someone dies sometime in the future and leaves a will that was signed during lockdown, the High Court may want extra documents filed to prove that the will was signed correctly under the Epidemic Preparedness Order relating to wills.
Similarly, if someone wishes to rely on an EPA some years in the future, it may be tricky having to produce multiple copies of the document each signed by a different person or that person’s witness.
For these reasons, we would recommend that any will or EPA that has been signed during the lockdown periods using the special procedures should be signed again. There is no rush about this, but it would be wise to sign a fresh will and fresh EPA just to avoid any unnecessary complications. Getting probate of a will, for example, can be a very messy and time-consuming business if the will is in any way unusual. The registrar will often require further affidavits to prove the will was properly signed. Preparing these affidavits costs money and if you can avoid those complications by signing a new will in the usual way, this would be a good idea.
[1] Epidemic Preparedness (Wills Act 2007 – Signing and Witnessing of Wills) Immediate Modification Order 2020.
[2] Some staff of trustee corporations are also able to witness EPAs.
[3] Epidemic Preparedness (Protection of Personal and Property Rights Act 1988 – Enduring Powers of Attorney) Immediate Modification Order 2020.
[4] Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020.
Disclaimer: All the information published in Trust eSpeaking is true and accurate to the best of the author’s knowledge. It should not be substituted for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are the views of the authors individually and do not necessarily reflect the view of this firm. Articles appearing in Trust eSpeaking may be reproduced with prior approval from the editor and credit being given to the source.
Content Copyright © NZ LAW Limited, 2020. Editor Adrienne Olsen, e. adrienne@adroite.co.nz p. 029 286 3650
