Audio-Visually signed COVID Will admitted to Probate via s18 Application (QLD)

I must start this post with an absolutely huge thank you for the patience of my delightful blog followers. I have been a little distracted of late, but I promise, I will never forget this beloved blog of mine. I have a few cases to write about that I’m sure you will all enjoy, starting with this one.

My good friends, Caite Brewer (along with Pip Coore) and Angela Cornford-Scott, were recently involved in the first application to the Qld Supreme Court regarding a Will signed under the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Qld).

In the matter of Re Sheehan [2021] QSC 89 The case involved a gentleman who had given instructions to Ms Cornford-Scott to prepare his Will and Enduring Power of Attorney and ultimately executed the documents with the witnesses watching via an audio-visual link (in this case a Zoom meeting).

Unfortunately, a difficulty arose when the signed documents were subsequently delivered to Ms Cornford-Scott’s office and it was identified that the testator had not signed one page of his multi-page Will. The irony of this particular issue is that a Will signed under the normal provisions of the Succession Act 1981 is not required to be signed on every page; however, the COVID-19 Emergency Response Regulation does.

Whilst Ms Cornford-Scott quickly alerted the testator and his friend (who was assisting the testator to get this affairs in order whilst also getting ready for a brain surgery) about the missing page and whilst further attempts to follow up were carried out, the missing signature was never affixed to the Will. Unfortunately, the testator subsequently passed away without having signed the page.

Accordingly, a section 18 application was made to uphold the Will despite its lack of compliance with the Regulation. Relevantly, as the Will was not compliant there was no presumption of capacity and as such the Court also had to consider whether the testator had the testamentary capacity to make such a Will. The complicate matters further there was also the requirement to serve all 41 interested beneficiaries with the proceedings.

In upholding the Will, the Court said:

Ms Cornford-Scott, brought a high degree of competence and diligence to bear on those tasks, as well as in the provision of advice to the deceased regarding what was (and remains) a complicated estate with a multiplicity of potentially affected persons. Audio-visual recordings of the critical parts of the process were placed before the court. They are of excellent quality and allowed the court to make its own assessment of the deceased’s understanding and intent. Despite Ms Cornford-Scott’s best efforts, the execution of the will fell short of the legislative requirements, but the bringing of this application will not have any diminishing effect on the estate. That is because Ms Cornford-Scott has rightly refused to charge any fee for the work required to remedy this irregularity and, to their considerable credit, counsel for the applicants – Ms Brewer leading Ms Coore – agreed to assist Ms Cornford-Scott by appearing on the application pro bono.

At paragraph 4

This is the first case to deal with the regulations that were established amidst the COVID chaos and it certainly highlights the growing importance of the use of technology in the every day practice of succession law; a development that does not appear to show any sign of slowing down!

You can read the case here.