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Changes to oaths, declarations, and wills under lockdown

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The government has made two orders under the Epidemic Preparedness Act 2006

The first modifies the Oaths and Declarations Act 1957 to enable an oath, an affirmation, or a declaration to be administered or taken using an audiovisual or audio link instead of in the presence of the person swearing the oath or making the affirmation or declaration.

The second modifies requirements imposed by section 11 of the Wills Act 2007 requiring that a will be signed in the physical presence of 2 witnesses. 

They are both temporary and will be revoked when the  Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked.

The Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020 modifies requirements imposed by the Oaths and Declarations Act 1957 (the Act) that may be impossible or impracticable to comply with during an epidemic. 

The modifications expressly allow an oath, an affirmation, or a declaration to be administered or taken using an audiovisual or audio link instead of in the presence of the person swearing the oath or making the affirmation or declaration.

The modifications also enable a declaration to be taken by any officer or employee of an entity who is authorised by the entity, but only if an enactment authorises or requires the declaration to be provided to the entity.

The modifications are limited to modifying requirements of Part 1 of the Act for administering or taking oaths, affirmations, or declarations and are temporary (they end when the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked).

In particular, the modifications enable:
• an oath, a affirmation, or a declaration to be administered or taken using an audiovisual or audio link instead of in the presence of the person swearing the oath or making the affirmation or declaration; and
• a declaration to be taken by any officer or employee of an entity who is authorised by the entity, but only if an enactment authorises or requires the declaration to be provided to the entity.

Some people wishing to make oaths, affirmations, or declarations will not have access to digital devices or smart phones. For that reason, it is no more than reasonably necessary to enable them to be administered or taken by phone or other audio link as well as audiovisual link.

The Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order 2020 modifies requirements imposed by section 11 of the Wills Act 2007 (the Act) that may be impossible or impracticable to comply with during an epidemic. 

During a lockdown period, people who live with other adults may be able to sign a will in the physical presence of 2 witnesses (for example, if no disposition in the will to or through a witness will be void under section 13 of the Wills Act 2007). However, people who live alone, or with 1 other adult, will not be able to do so.

For those people, it is “impossible” or “impracticable” (that is to say, practically impossible) to sign a will in the physical presence of 2 witnesses. Moreover, even if a lower alert level applies, it is likely to be important for vulnerable people to remain isolated.  

The modifications are:
• limited to modifying requirements, set out in section 11 of the Wills Act 2007, for signing and witnessing of wills; and
• temporary (they end when the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked).

This article was originally published on 19 April 2020 at https://www.nzbar.org.nz/news/oaths-declarations-and-wills-new-orders

Question answered 03/05/20 @ 14:57 pm

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