Wills and Estates: 10 November 2022
The recent Supreme Court of Victoria decision in Re Curtis  VSC 621 has provided, for the first time, clarification regarding the process and legality of electronically signing and witnessing a Will in Victoria.
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:
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:
Our previous article on the amendments to the Wills Act can be found here.
In the matter of Re Curtis , 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:
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:
This decision follows a recent Queensland case of Re Sheehan  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.