First ‘COVID will’ tested in court
A Queensland court has considered the first case of a will signed under special COVID-19 legislation, allowing people in hospital to have wills witnessed by audio visual link.
Stan Sheehan, who died, aged 70, at Gold Coast University Hospital on December 1, attempted to execute a will from his hospital bed a month earlier, but failed to sign one page. Although wills made under normal circumstances do not have to be signed on every page, that was required under COVID-19 Emergency Response legislation for wills.
It was introduced during the pandemic, because of the necessity for people in hospital to be able to make a will, when they might be barred from having close personal contact with witnesses.
The two executors of Mr Sheehan's will - friend and business associate Matthew Loveday and Mr Sheehan's brother Noel Sheehan - then had to apply to the Supreme Court for probate of an informal will.
Under the Succession Act, a will must be in writing and signed by the person making it, in the presence of two witnesses.
But under a COVID-19 regulation that came into force on May 15, last year, Mr Sheehan's will could be witnessed via audio visual link.
While in hospital, Mr Sheehan, who had a brain tumour, met solicitor Angela Cornford-Scott via Zoom to finalise instructions for his will, a few days before he was to have exploratory surgery.
The will was urgently prepared and a draft emailed to Mr Sheehan, with a hard copy taken to him in hospital by Mr Loveday, the court heard.
The next day the solicitor met with Mr Sheehan and Mr Loveday online via Zoom.
Mr Loveday was asked to sign each page of the will, watched by the solicitor and her administrative assistant on the audio visual link.
After the document was scanned and emailed to Ms Cornford-Scott that night, she noticed that Mr Sheehan had not signed the fifth page and that a schedule was not attached.
By the next day Mr Sheehan was having surgery, but afterwards he became ill and never recovered sufficiently to re-execute the will before he died almost a month later.
Justice Burns had to decide whether the document signed by Stanislaus Kevin Sheehan should operate as his final will and whether probate should be granted.
The judge said excellent quality audiovisual recordings of the critical parts of the process of the solicitor taking instructions and advising Mr Sheehan allowed the court to make its own assessment of his understanding and intent.
He said it was plainly established on all the evidence that Mr Sheehan intended the document he signed on November 2 to take immediate effect as his last will and that he had capacity to make it.
"Helped to a considerable degree by the clarity of the audio visual recordings of the relevant 'meeting', I was left with the firm impression that the deceased was at all times sharp and alert,'' the judge said.
On March 15, Justice Burns ordered that a grant of probate should be made to the executors.
Originally published as First 'COVID will' tested in court