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Wills Are Not ‘essential Services’, But Pet Toys And Hair Products Are

By Cheryl Simes (Kiwilaw)

Thursday, 9 April 2020

If you need to make a valid will during lockdown, you need the internet and a printer, or you need a lawyer who does not charge for the will.

Alternatively, you can handwrite it. Copy it by hand from what the lawyer emails you, or handwrite it from what they dictate over the phone.

You also need two witnesses who can watch you sign it and who can then sign it themselves without any of you leaving your properties or coming within 2 metres. You all have to be close enough to see that what is being signed is a will.

If you cannot do it on paper, or you do not have witnesses available, you can still do it. There will be more legal hassle but it’s better than not having a will at all.

No couriers or delivery

A valid will must be hard copy, not electronic. (Wills are one of the exceptions to the general law allowing electronic legal documents.)

Legal services – including wills – are not ‘essential’ under the current law, unless they are urgent court matters or necessary to support an ‘essential’ business or service.

Therefore, under the current restrictions, a lawyer cannot legally courier a will to you.

Nor can they legally drop one off in your letterbox.

Nor can they legally take it to a mailbox to post it.

That is because they cannot legally travel outside their home, for their (‘non-essential’) business.

However, if they don’t charge for preparing the will and it is not being done as part of their business, they can drop it off in your letterbox or mail it - if they can get there with little or no detour as part of a trip to an essential service such as the supermarket, or local exercise or recreation.

They are legally allowed to travel to any supermarket or other essential service anywhere within the same territorial authority, so if you are on the other side of Auckland and live opposite their preferred supermarket, they can drop it off. However, they can’t charge you for it.

You can, however, handwrite a will. You can use the wording your lawyer emails to you, or that they dictate over the phone, or that you make up yourself.

Witnessing

A valid will must be signed in front of two adult witnesses who are physically present and who sign at that same time.

Those witnesses cannot be people who will inherit under the will – or the spouse of someone who will inherit. If they do witness the will, they lose their inheritance under the will. That usually rules out other household members.

In the United Kingdom, some solicitors are able to witness wills while maintaining ‘social distancing’ through glass – car windscreens, house windows, and the like. Others have perfected the technique of leaving the document outside on a chair, and everyone goes to the document in turn, with their own pens, while staying within view of everyone else. That works and is safe. However, it is not legal in New Zealand.

In New Zealand, a lawyer who is working from home cannot legally go outside the lawyer’s own home property to do it that way, unless they do not charge for doing so. If they do not charge for doing so, they can potentially do it that way if you live close enough to an essential service that the lawyer wants to use, or that can be reached during local exercise.

However, the witnesses can be anyone over 20. They do not have to be lawyers or JPs or anyone special. Just not family members who will inherit under the will.

Do not sign a will if you are being pressured into it. (Or, if you have to because of your own safety, do sign it – but also email or phone a lawyer to tell them what has happened. They can tell the High Court to investigate further before approving that will, if you die in the meantime before everything can be sorted out.)

Options in the meantime

You can still make a will, even if you cannot get it witnessed in person, or if you cannot print it out.

The High Court can make an order declaring that an invalid will is ‘valid’. The court must be satisfied that the document accurately represents the will-maker’s wishes, at the time they die.

I recommend you sign the will without delay, even if it is handwritten, and even if you do not have witnesses available in person. A signed will is better than an unsigned will.

If possible, sign it in front of neighbours who can see what you are doing (over the fence or through the window) and who then sign it themselves. After you sign it with them watching, leave it where they can then pick it up and sign it, with you watching them sign. Then they leave it for you to pick it up again. Both of them need to sign it at the same time, and you need to see both of them signing it. Stay at least 2 metres apart, wash your hands before and after, tell the neighbours to wear disposable gloves when they touch the document. Use your own pens. Put the will somewhere safe and don’t touch it again for a few days. Wash your hands.

If you cannot do it in hard copy with two witnesses present:

  • write beside your signature, ‘I cannot get this witnessed properly because I am in compulsory isolation under the COVID-19 lockdown.’
  • if possible, sign a hard copy rather than an electronic one
  • if possible, do it in front of one or two witnesses by video, and record the video
  • if possible, email a copy of your signed will to the witnesses and ask them to sign it and send it back to you so you can keep it with the original that you have signed.
  • Once the lockdown ends, get it signed again properly, in front of two independent witnesses. They can be any adults. You do not have to use a lawyer or a JP. (Sometimes using a lawyer or doctor can help if there is an issue about whether you made the will voluntarily and with full mental capacity.)

This can all be simplified

No explanation has been given (to date) for why will-making is not an ‘essential service’.

Making will-making an ‘essential service’ would allow lawyers to deliver or courier hard-copy wills, and make safe arrangements to have them witnessed properly if at all practicable, without either risking prosecution or having to waive all fees for doing so.

Meanwhile, you can legally buy online, and have delivered (including by courier), pet toys, hair products, and coffee capsules.

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