Electronically signed Wills in Victoria

Wills and Estates: 10 November 2022

The recent Supreme Court of Victoria decision in Re Curtis [2022] VSC 621 has provided, for the first time, clarification regarding the process and legality of electronically signing and witnessing a Will in Victoria.

Background

Wills Act 1997 (Vic)

In Victoria, the requirements for a valid Will are set out in the Wills Act 1997 (Vic) (the Wills Act).

Section 7(1) of the Wills Act provides that a Will is not valid unless:

1. it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
2. the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.

Electronic signing introduced in Victoria

Until recently, there was no way to sign a valid Will electronically, although electronic documents have been able to be admitted to probate as 'informal' Wills in certain cases.

In response to the outbreak of COVID-19, Victoria introduced temporary measures throughout 2020 and 2021, permitting the remote signing and witnessing of documents, including Wills.

You can read more about the introduction of these regulations in our previous article here.

These temporary measures came to an end on 26 April 2021, when Victoria introduced the permanent Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (the Justice Amendment Act).

The Justice Amendment Act makes several amendments to the Wills Act, to allow a Will to be signed and witnessed electronically.

In particular, the newly added section 8A in the Wills Act sets out the 'remote execution procedure' when signing and witnessing a Will. This procedure includes that:

• Witnesses to the Will must be able to clearly see the Willmaker signing the Will with their signature.
• After being signed, the Will must be 'transmitted by electronic communication to any witness attending by audio-visual link'.
• The witnesses must be satisfied that the Will they receive by electronic transmission is the same document that they saw the Willmaker sign with their signature.
• One of the witnesses must be a 'special witness', such as a lawyer.
• There must be statements in the Will from each witness, noting that it was signed by the 'remote execution procedure'.
• The special witness must also include a statement that the 'remote execution procedure' has been followed.

Our previous article on the amendments to the Wills Act can be found here.

Recent developments

In the matter of Re Curtis [2022], the Supreme Court ruled that it could not 'be satisfied that the deceased's will was executed in accordance with the remote execution procedure' and therefore held that the deceased had not validly executed his Will in accordance with the Wills Act.

In this case, the deceased attempted to sign his Will electronically using a program called DocuSign, while on a video-conference call with his solicitors, who were able to see the deceased throughout the signing conference.

However, the Court found that:

• Section 8A(4) of the Wills Act required that the Will must be signed by the Willmaker with 'all witnesses clearly seeing that signature being made...'
• In this case, the solicitor was able to see the deceased as he operated his computer on the video call, but they did not have a clear view of the Willmaker's screen and so were not able to see the Willmaker applying his signature to the document.

For the above reasons, the Court said it could not be satisfied that the Willmaker had signed the Will with the witnesses 'clearly seeing' his signature 'being made'.

The Court has suggested that this issue could be resolved by either:

• Adjusting the angle of the camera, on the device from which the audio-visual link is being operated, to allow the witnesses to see the Willmaker, their actions and the document.
• The Willmaker sharing their screen whilst they appear on the audio-visual link.

Lessons from the Court

This decision follows a recent Queensland case of Re Sheehan [2021] QSC 89, where the Supreme Court also found that the Willmaker had failed to validly execute their Will in the manner prescribed by the Queensland emergency legislation.

Both cases are important, as they highlight the strict requirements, as well as the risks, of signing and witnessing a Will electronically. In both cases, the Willmakers were advised by experienced and competent solicitors, but the Wills were found to be invalid due to technical issues, which caused them to be non-compliant with the legislative requirements.

The electronic signing of Wills is extremely new territory, and one of the most drastic changes in centuries in this area of law. While the legislation was introduced to facilitate the signing of Wills electronically following a time of national emergency, the technical and prescriptive nature of the legislation means that Willmakers attempting to sign electronically are unlikely to have certainty about the validity of their Will.

Further, the persons who most require the remote witnessing procedure, elderly persons and those suffering from illness or disability, may have the most difficulty with carrying out the required remote witnessing procedure.

The Court decisions instead suggest that admitting an electronically signed Will to probate can be complicated and costly, given the evidence that is needed to satisfy the Court of compliance with the remote execution procedure.

Accordingly, unless the legislation is relaxed, it remains best practice to sign the Will in person, to reduce the risk that the Will is later found invalid due to a technical issue, and to avoid the additional costs and delays that are likely to be associated with obtaining probate of an electronically signed Will.

Please contact our Wills & Estates Team if you require advice about preparing a Will or an estate-related matter.