Remote Signing of Wills.

The global pandemic caused by COVID-19 has evolved the adoption of technology in our daily lives and work. In order to continue life and commerce during lockdowns the laws were changed to widen the use of electronic signing and execution of documents. While contracts, leases and other standard documents are often signed remotely questions started to be raised on whether another document could be signed remotely, a person’s last Will and Testament.

In Victoria the Wills Act 1997 (Vic) (the Act) provides how a Will needs to be executed in order for the document to be valid. Historically a Will must be signed by a testator in the physical presence of two individuals, this physical presence was non-negotiable and was a requirement for validity.

However, the Victorian Parliament has recognised that in the post-COVID world it is not always practical and they passed permanent amendments to the Act with the inclusion of Section 8A to allow for the remote signing of Wills.

In brief, Section 8A of the Act provides:

• In Victoria, a Will can be signed remotely without the need for the testator and witnesses to be physically present together;
• One of the witnesses to the Will must be a “special witness” ie Australian Legal Practitioner or a Justice of the Peace;
• The Will must be signed and witnessed in full on the same day in Victoria;
• The testator must sign the Will with the witnesses clearly seeing that the signature is being made by audio visual link or by a combination of physical presence and video link;
• The Will must be physically printed and signed by the testator and each witness. The Will cannot be signed electronically using DocuSign or other screen share signing software; and
• Once the testator has signed, the Will is transmitted from the testator to the witnesses via electronic means (like email) who then must print out the copy of the signed Will, then sign in the presence of the testator and the other witness via audio visual link.

The legal community has been very hesitant to take advantage of section 8A of the Act as the amendments are new. It is an understandable aversion given that the Will may not be valid if the remote signing procedure is not followed precisely.

Landmark case on remote signing of  Wills.

Fortunately, in the recent case of Re Curtis [ 2022] VSC 621 the Supreme Court of Victoria has provided some practical guidance on how testators and the witnesses can effectively execute a Will remotely.

In Re Curtis the Supreme Court has advised that, in addition to the requirements of Section 8A of the Act, the following practical measures should also be observed when signing a Will remotely:

• Using audio visual software, the parties must ensure that the testator and witnesses are able to clearly see the hands of each the individual making of the signature and simultaneously clearly see the signature appearing on the document;
• It may be necessary for the testator and each witness to operate two devices each. The primary device should be used to perform the electronic signing and the secondary device should be used to clearly show the person signing the will;
• The audio-visual conference should be recorded which can be submitted to the Court when an application for a Grant of Probate is made in the testator’s estate after their death; and
• The special witness should execute an affidavit of due execution to be stored with the Will.

As a result of these changes, we can assist clients who cannot attend the office physically to sign their Will. We can take your instructions and advise you online to complete your Will and if required Powers of Attorney.

At PCL Lawyers we ensure that your Will is drafted to suit your circumstances and you are aware of any issues that may impact the beneficiaries or end in an estate dispute. This makes it much easier for the executors, usually a loved one, to deal with the administration of your estate and probate.

We give careful consideration and can provide clear and effective advice on a range of matters concerning estates, Part IV disputes, testamentary trusts and more.

Contact one of our Wills lawyers to get advice on preparing your Will and estate planning.

About The Author - Philip Drew

Philip is a Senior Associate and leads the Wills and Estates practice group at PCL Lawyers. He advises clients across a wide range of complex estate planning matters, the administration of deceased...