New Zealand Law Society - MoJ provide guidance on temporary changes to wills and oaths

MoJ provide guidance on temporary changes to wills and oaths

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Two Immediate Modification Orders have been made under the current Epidemic Preparedness Notice to amend the completion of oaths, affirmations or declarations and the signing and witnessing of wills during COVID-19.

The Ministry of Justice has released information for people signing and witnessing wills and completing oaths, declarations or affirmations during COVID-19.

Signing and witnessing wills

Under the Order, s 11 of the Wills Act 2007 which sets out signing and witnessing requirements, has been temporarily amended.

The change allows for wills to be signed and witnessed using audio-visual links:

  • A person who is signing on the will-maker’s behalf (pursuant to s 11(3)(b)), can sign in front of the will-maker by audio-visual link from another place.
  • Witnesses can witness the will-maker sign a copy of the document by audio-visual link.
  • Witnesses can sign a copy of the document in front of the will-maker by audio-visual link.
  • All people signing a copy of the will must make it clear on the copy that it is signed this way because an epidemic notice is in force.
  • Photographs or scans of the signed copies must be sent as soon as practical to a person who has been chosen to hold the document and all photographs or scans of signed copies of the will. If a lawyer or trust company has been involved in preparing and witnessing your will, they can hold the document and all photographs or scans of signed copies of the will.

The Ministry raises examples of audio-visual tools such as Zoom, Skype and Facetime.

If a will is made during an epidemic notice, it is considered a valid will.

The Ministry recommends after a copy of the will is signed, the individual must take a photograph or scan it and send that to the person designated to hold the will (the physical document, and photographs or scans of all the signed copies) with no delay.

Completing Oaths, Declarations and Affirmations

The modification order amends the Oaths and Declarations Act 1957, which sets out the requirements for making oaths and affirmations (such as affidavits) and statutory declarations.

The change makes it clear that there is no requirement for a person taking oaths, affirmations or declarations to be in the physical presence of those making them. The person witnessing the oath, declaration or affirmation is also not required to physically sign the same document as the person making it.

Instead, oaths, affirmations or declarations can be administered using audio-visual or audio links, such over Skype, Zoom, Facetime, or over the phone.

The ministry recommends the person making the oath, affirmation or declaration should sign the document during the audio-visual or audio link.

Not everyone has access to an audio-visual link. For this reason the modification order also allows the use of audio-link, such as a phone.

What is an Immediate Modification Order?

Immediate modification orders (IMOs) are issued under s 15 of the Epidemic Preparedness Act. IMOs are considered and agreed to by Cabinet and take the form of Orders in Council.

IMOs can only be used where there is a statutory requirement or restriction that is impossible or impracticable to comply with, or comply with fully, during an epidemic.

Changes under an immediate modification order apply only while the Epidemic Notice is in Force in New Zealand.