covid19-law.com.au
23. Wills & Estates
A. Overview
The mortality risk arising from COVID-19 is a key driver of estate planning during the pandemic, yet restrictions imposed by governments relating to movement have significant implications for how estate planning can occur during this time, including in respect of the execution of wills in a way that ensures that testamentary intentions are legally enforceable.
B. Legislation
Victoria:
Made under the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic):
Queensland:
Made under the COVID-19 Emergency Response Act 2020 (Qld):
Tasmania:
Made under COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas):
South Australia:
COVID-19 Emergency Response Act 2020 (SA):
Northern Territory:
Administration and Probate Act 1969 (NT), amended by the Courts Legislation Amendment Act 2020 (NT).
C. Case law
In The Estate of Wendy Gwynne Price [2020] NSWSC 782, the NSW Supreme Court rejected a submission to the effect that an executor of an estate should be restrained from selling certain real property in the estate until after the impact of the pandemic on the property market had eased: [61], [73]. Noting that the health and economic effects of the pandemic may last for years, the Court held that the executors had a duty to administer the estate in the then prevailing market conditions and could take advice from a competent real estate agent as to how to market the property in the circumstances: [73].
D. Further resources
A. Overview
The mortality risk arising from COVID-19 is a key driver of estate planning during the pandemic, yet restrictions imposed by governments relating to movement have significant implications for how estate planning can occur during this time, including in respect of the execution of wills in a way that ensures that testamentary intentions are legally enforceable.
B. Legislation
Victoria:
Made under the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic):
- COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020, which modifies the application of the Wills Act 1997 (Vic).
Queensland:
Made under the COVID-19 Emergency Response Act 2020 (Qld):
- Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 amended by:
- Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Amendment Regulation 2020: to prescribe modified requirements or arrangements for the making, signing and witnessing of affidavits, statutory declarations, oaths, deeds, particular mortgages and general powers of attorney, in reliance on ss 8 and 9 of the COVID-19 Response Act 2020.
Tasmania:
Made under COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas):
South Australia:
COVID-19 Emergency Response Act 2020 (SA):
- Section 16: Requirements relating to documents.
Northern Territory:
Administration and Probate Act 1969 (NT), amended by the Courts Legislation Amendment Act 2020 (NT).
C. Case law
In The Estate of Wendy Gwynne Price [2020] NSWSC 782, the NSW Supreme Court rejected a submission to the effect that an executor of an estate should be restrained from selling certain real property in the estate until after the impact of the pandemic on the property market had eased: [61], [73]. Noting that the health and economic effects of the pandemic may last for years, the Court held that the executors had a duty to administer the estate in the then prevailing market conditions and could take advice from a competent real estate agent as to how to market the property in the circumstances: [73].
D. Further resources
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