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The recent ruling of Re Curtis [2022] VSC 621 provides important guidance for estate planning practitioners on the requirements for electronic signing and remote witnessing of wills by audio-visual link under the new section 8A of the Wills Act 1997 (Vic).

The Court noted it may be prudent for practitioners that have executed wills remotely to revisit them to check they have complied with the remote execution procedure as clarified in the ruling and, if they don’t comply, re-execute them in the usual way in person or re-do remotely in accordance with the procedure.

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 is the first ruling considering the new 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. In particular, the Court held that witnesses need to see the will-maker operating the computer or device to apply the signature and as they do so, also see the signature appearing on the electronic document.

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.

A key uncertainty concerned the requirement in s 8A(4) (a) of the Wills Act for 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.’

Whether this requirement is satisfied will depend on the circumstances of each case and how the document is signed by the will-maker— for example if it’s done electronically or by hand. The Court held 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].

Examples of how this could be achieved include the will-maker sharing their screen and 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 [will-maker], their actions and the document.‘ The court noted the importance of seeing the will-maker operate the computer or device as:

In circumstances where an audio-visual link affords only a limited view of the location that a testator is in, it is impossible to know whether any other person is present and exerting undue Influence over the testator, or appearing off screen and operating the mouse without the witnesses knowing [at 149].

At the time of signing the will, the laptop used to apply the signature was not visible to the witnesses such that the Court found that the will had not been validly executed in accordance with the remote execution procedure.

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. For example, 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 Court found that even if these two steps had been followed, because the witnesses’ hands could not be seen operating the mouse that was affixing the signature, the Court could not conclude that the witnesses had been clearly seen adding their signature.

Notwithstanding the non- compliance with the remote execution procedure, the Court held that the video recording was sufficient in this case for the will to be admitted to probate as an informal Will.

The case demonstrates the complexity of the detailed remote execution procedure for wills and that careful attention is needed to the requirements which are helpfully summarised in paragraph 83 of the ruling.

To comply with the procedure, will-makers and witnesses need 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 for example— while at the same time also observing the signature being applied on the document. As part of this process, it will be important to obtain oral confirmation from the will-maker and witnesses during the audio-visual conference that they have observed the respective signatures being made.

Practitioners should also 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.

The remote execution procedure does not require video recordings to be made. However, with consent, recordings are best practice as, if necessary, 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.

If you have executed any wills remotely, it is worth revisiting them to check that the remote execution procedure has been complied with in accordance with Re Curtis. If not, the will should be re-executed in the usual way in person or remotely in compliance with the procedure.