By Ines Kallweit and Rachael Hocking -
Snapshot
- A recent case involved the first application for a grant of probate of an electronically signed will in Victoria.
- The Court considered whether the use of an audio-visual link in conjunction with an electronic signing program was sufficient to satisfy the requirements of the new remote execution procedure.
- This case may provide useful guidance to NSW practitioners.
With the outbreak of COVID-19, states went into lockdown and people were only permitted to leave their residences under limited circumstances. Various states, including New South Wales and Victoria, introduced remote execution provisions to allow certain documents like wills and affidavits to be witnessed and executed remotely and online.
In the recent case of Re Curtis [2022] VSC 621, the Supreme Court of Victoria considered whether a will signed and witnessed electronically complied with the new remote execution procedure and was a valid will under section 7 of the Wills Act 1997 (Vic). This was the first Victorian application for grant of probate of an electronically signed will.
Background
In April 2021, the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) was introduced to amend the Wills Act 1997 (Vic) to establish the remote execution procedure in section 8A which allows for wills to be electronically signed and witnessed.
The procedure requires the testator and all witnesses to clearly see the signatures being made by audio visual link, one of the witnesses must be a special witness (an Australian legal practitioner or Justice of the Peace) and all elements of the remote execution procedure must be carried out on the same day within Victoria.
The will was made on 7 June 2021 (‘the will’) during Victoria’s lockdown restrictions as a result of the COVID-19 pandemic. At the time, execution of a will was not a specified reason to leave a person’s premises or to enter another person’s premises. Accordingly, the testator sought to adopt the remote execution procedure. The will was signed by the executor utilising an electronic signing program (‘DocuSign’) in an online meeting facilitated by audio-visual link (‘Zoom’), with two witnesses participating in the meeting and applying their signatures electronically. The Zoom meeting was recorded.
