Electronic signing and remote witnessing of wills by audio-visual link under section 8A of the Wills Act 1997 (Vic) requires careful attention to the statutory requirements as highlighted in the case of Re Curtis [2022] VSC 621.
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Introduction of electronic signing and remote witnessing
Electronic signing of wills was first introduced on 12 May 2020 by the Victorian government as a temporary measure during the coronavirus pandemic under the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic). On 26 April 2021 the regulations expired, and a permanent remote execution procedure was enacted under section 8A of the Wills Act.
Re Curtis [2022] VSC 621
Re Curtis is the first ruling considering the remote execution procedure and highlights the practical difficulties in complying with the requirement under s8A(4)(a) for witnesses to ‘clearly see’ the will-maker’s signature being made.
The facts
On 7 June 2021 Mr Curtis (the will-maker) executed his will remotely by audio-visual link. This was done at a time when public health directions were in force restricting the circumstances in which Melbourne residents, including the will-maker, could leave their home.
The will-maker applied his signature to the will electronically using the software program DocuSign with two witnesses participating via a Zoom video conference and applying their signatures electronically.
The will-maker was seated in front of a computer to participate in the meeting, with a second laptop set up next to him to operate the DocuSign program and apply his electronic signature. When applying the signature, the second laptop was ‘out of frame’ and not visible to the witnesses over the audio-visual link and the meeting was recorded via the Zoom recording functionality.
Mr Curtis died on 21 June 2022 and a grant of probate was sought in respect of his will. The Registrar of Probates considered there was uncertainty as to whether the will was executed in compliance with the remote execution procedure and the matter was referred to a Judge for determination.
The decision
Section 8A(4) (a) of the Wills Act requires the will-maker to sign the will ‘with all witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link.
The Court held this means that:
In the context of an electronic signature, ‘clearly seeing’ the signature ‘being made’ requires the witnesses to observe the testator operating the computer or device to apply the signature, and the signature appearing on the electronic document as they do so [at 116].
The court gave examples of how this could be achieved including the will-maker adjusting the angle of the camera on their device to allow the witnesses to see the will-maker sign the document.‘ The court noted it was important that the witnesses see the will-maker operate the computer or device to ensure no one else was operating the computer or exerting undue influence on the will-maker. [at 149].
The court found that the will had not been validly executed in accordance with the remote execution procedure because at the time of signing the will, the laptop used to apply the signature was not visible to the witnesses.
The court also held that the similar requirement under 8A(7)(c) of the Wills Act for two witnesses to sign the will with the will-maker ‘clearly seeing’ their respective signatures being made was also not satisfied in this case.
The recording of the Zoom meeting showed that the witnesses shared their screens while applying the signature but there was no evidence that the will-maker could see, and was in fact observing, these images as they appeared on the recording. The will-maker was not told to observe the witnesses applying their signature to the will and it was unclear from the recording whether the will maker audibly confirmed that he could in fact see the witnesses’ screens when they signed the will. The witnesses’ hands could not be seen operating the mouse that was affixing the signature, so the witnesses could not be clearly seen adding their signature.
The court held that the video recording was sufficient however for the will to be admitted to probate as an informal Will.
What to do
Familiarise yourself with the requirements of remote execution which are helpfully summarised in paragraph 83 of the ruling.
Building visibility checks into your will execution workflow, including:
- Ask all parties to consent to record the online meeting. The remote execution procedure does not require video recordings to be made however recordings are best practice as they can assist in corroborating evidence that the remote execution procedure was complied with and/or support an application for a grant of probate under s 9 of the Wills Act.
- Ask will-makers and witnesses to position cameras and use screen sharing functions to allow the will-maker and witnesses to clearly see the relevant person operating the computer or device to apply the electronic signature, including the mouse or touch screen where relevant
- Ask will-makers and witnesses to observe the signatures being applied on the document.
- Ask will-makers and witnesses to orally confirm during the audio-visual conference that they have observed the respective signatures being made.
Prepare an affidavit documenting each of the steps taken to comply with the remote execution procedure, including how the witnesses and will-maker observed the signatures being made.
If you have executed any wills remotely, revisit them to check that the remote execution procedure has been complied with in accordance with Re Curtis. If not, advise the client of the risks of not re-executing the will.
