Legal Documents Signed during Lockdown
Posted: 21 August 2020
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.
[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.
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.
DISCLAIMER: All the information published in the Property eSpeaking, Commercial eSpeaking, Trust eSpeaking, Rural eSpeaking, and Fineprint newsletters is true and accurate to the best of the authors’ knowledge. It should not be a substitute 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 article. Views expressed are those of individual authors, and do not necessarily reflect the view of this firm. Articles appearing in Property eSpeaking, Commercial eSpeaking, Trust eSpeaking, and Fineprint may be reproduced with prior approval from the editor and credit given to the source. Copyright, NZ LAW Limited, 2019. Editor: Adrienne Olsen. E-mail: [email protected]. Ph: 029 286 3650 or 04 496 5513.
