Re Curtis [2022] VSC 621.
In a landmark decision, the Supreme Court of Victoria has ruled on whether a Will signed electronically complied with the new remote execution procedure set out in the Wills Act 1997 (Vic) (“the Wills Act”) and was therefore a valid Will. This was the first application for a grant of probate of an electronically signed Will.
Background
In April 2021, the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 was introduced to amend the Wills Act to establish the remote execution procedure in s8A which allows for Wills to be electronically signed and witnessed.
As the Will was made during Victoria’s lockdown restrictions as a result of the COVID-19 pandemic, the executor sought to adopt the remote execution procedure and have the execution of their Will witnessed electronically. The Will was signed by the executor utilising an electronic signing tool (DocuSign) in a Zoom meeting, with two witnesses participating in the meeting and also applying their signatures electronically. The Zoom meeting was recorded.
Determining valid execution
The question for the Court was whether the use of an online conferencing facility such as Zoom in conjunction with an electronic signing program such as DocuSign would be sufficient to satisfy the requirements of the remote execution procedure, in particular the requirement to ‘clearly see’ each other, and for the witnesses to be clearly able to see the executor applying their signature to the Will.
The Court found that s8A(4)(a) of the Wills Act (which requires all witnesses to clearly see the signature being made) operates in addition to the requirement that the testator and witness sign the Will ‘in the presence of’ each other as is generally required under s7. It was held that the legislature intended to require more than the mere presence of the testator and two witnesses by audio-visual link – the witnesses must have an unobstructed view of the testator and the document they are signing.
The Court provided an example where the testator signed a hard copy of their Will by hand and then submitted it by electronic communication, noting that the audio-visual would have to show the testator physically signing the document.
However, as it was in this case, the situation is more difficult where all parties are signing electronically i.e., via DocuSign or the like.
Submissions were made by two experienced and well-respected Counsel in this jurisdiction as amici curiae who, in their opinion, did not believe that the remote execution procedure had been complied with.
On balance, the Court accepted that using the ‘adopt and sign’ function was sufficient for the purposes of an electronic signature under s7(6) of the Wills Act.
As for ‘clearly seeing’ the testator sign, the Court took the view that observing the testator sitting in front of his or her computer may not be sufficient to clearly see the signature being made. The fact that the witnesses saw the signature on the document when it was remitted by DocuSign to them for their own signatures was also not sufficient. The witnesses must observe the testator operating the computer to apply the signature.
The Court’s determination
The Court ruled that the presumption of due execution did not apply in this case as there was evidence before the Court in the form of a recording of the execution. Whilst a recording is not strictly required by the legislation, it was considered good practice to support the application.
Therefore, the Court ruled that whilst the remote execution was not strictly complied with, the video recording of the execution was sufficient for the Will to be admitted to probate as an informal Will.
A key takeaway from this case is that it is prudent for all parties to confirm that they can clearly see the operation of the computer by the testator when executing their Will. This decision provides much needed guidance to practitioners who are utilising the remote execution procedure under the Wills Act.
KHQ Lawyers acted for both the testator in making the Will and the executor in this application.
