Did you sign your Will remotely by electronic means during Covid lockdowns in Victoria? New case law suggests this needs to be reviewed URGENTLY.
During COVID lockdowns in 2020 and 2021, the need for remote execution of wills became increasingly important. In Victoria, Parliament passed legislation allowing for the remote execution of wills.[1]
Traditionally, wills were validly signed by the will maker in front of and in the presence of two other witnesses who also sign their names. This is commonly referred to as ‘wet signatures”.
Remote execution of wills refers to the process of signing a will outside the physical presence of witnesses. In practice, remote electronic will signings have commonly involved the use of:-
- Online audio-visual conferencing facilities such as Zoom; and
- E-signing software such as DocuSign or Adobe Sign.
Image Source: Residential Tenancies Authority, Queensland Government
Remote execution of wills is permitted under the Wills Act 1997 (Vic). However, there are specific requirements that must be met to ensure the validity of a remotely executed will. Recent case law from the Supreme Court of Victoria, specifically the case of Re: Curtis [2] suggests that the stringent requirements imposed by the court will result in most electronically signed wills being found to be “informal” wills.[3]
The finding of the Court will have the unintended consequence of imposing additional strict requirements on executors to obtain grants of probate of an “informal” will. Treating a will as “informal” means there are additional and sometimes onerous requirements (such as consent of beneficiaries and evidence of capacity) which may not be able to be met.
Given the findings of the Supreme Court in the recent Curtis case, it is imperative that you take steps to re-execute your will as soon as possible. This is to ensure:-
- Importantly, that the wishes set out in your will are able to be achieved; and
- Also, that inconvenience and stress to your loved ones and additional costs to your estate do not occur.
Note to our clients: Please contact our office urgently to arrange an appointment to re-sign your estate planning documents using “wet signatures” at no additional charge.
[1]On 25 April 2020, the Covid-19 Omnibus (Emergency Measures) Act 2020 came into operation. On 20 May 2020, the Governor in Council made Covid-19 (Electronic Signing and Witnessing) Regulations 2020 (Vic) and came into operation.
[2] Re Curtis [2022] VSC 621
[3] The findings of the case show a lack of understanding of how modern technology works – but unfortunately it establishes a precedent.
If you wish to discuss any aspect of your estate planning, please contact us on 03 9592 3356 or email office@citypacific.com.au or fill in the web contact form here:
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