The COVID-19 pandemic has seen each State introduce amendments to their respective laws to provide a remote execution mechanism allowing legal documents (such as Wills) to be signed and witnessed via audio-visual link.
The requirements of these remote execution schemes have not been considered in detail until the recent ruling of the Supreme Court of Victoria in Re Curtis [2022] VSC 621.
Background
- On 7 June 2021, Mr Curtis (the will-maker) executed the Will in question remotely via audio-visual link during one of Melbourne’s COVID-19 lockdowns.
- Mr Curtis and two witnesses (including his lawyer) attended a meeting via Zoom (which was recorded) and the Will was uploaded onto Docusign, an electronic signing program, by his lawyer and an email link for Docusign was subsequently sent to him.
- Mr Curtis was using two devices at the time of signing: a desktop computer to operate the Zoom meeting and a separate laptop to access his email and operate DocuSign.
- Both witnesses saw Mr Curtis use his laptop to view his Will via the Docusign link and he held it up to the desktop screen so that they could see the Will. He then put his laptop down and completed his signature via Docusign out of sight.
- Docusign then sent links to each of the witnesses, who were using the one device to use both Zoom and Docusign. When they signed the Will electronically, it was possible to see their faces and their cursor moving around the screen (but not the hands operating the computer).
- Mr Curtis died on 21 June 2022 and an application was made to the Supreme Court of Victoria for a grant of probate in respect of the Will in September 2021. Similar to other applications for a grant of probate of an electronically signed Will, the Registrar of Probates requested for an affidavit to be filed detailing the circumstances of the execution of the Will.
- The Registrar was uncertain as to whether the proper remote execution procedure was complied with, and the application was referred to the Court.
Issue
In March 2021, a permanent remote witnessing scheme was introduced in the Wills Act 1997 (Vic) to allow a Will to be signed and witnessed over audio-visual link. Section 8A(4) of the 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 considered whether the requirement for witnesses to clearly see the will-maker sign and for the will-maker to clearly see the witnesses sign was satisfied by the procedure. The recording of the Zoom meeting was admitted as evidence and the Court was able to view what took place during the meeting.
The Court’s Decision
The Court reasoned that:
- because the witnesses could not actually see Mr Curtis’ hands using the laptop or see what the laptop had on its screen at the time of signing, they had not clearly seen him sign the Will electronically; and
- despite the witnesses sharing their screen, Mr Curtis could not have clearly seen the witnesses sign the Will as he did not actually see the person operating the computer mouse. However, the Court noted that this process might be acceptable if the will-maker verbally confirms that they can see the screen being operated by the two witnesses.
The option of having a Will signed remotely over audio-visual link is beneficial, particularly for clients who live remotely. However, this case suggests that any Will signed in accordance with the remote execution schemes are subject to greater scrutiny in comparison to a physically signed Will.
Careful attention is required to ensure that the requirements under the relevant remote execution scheme are satisfied to prevent any hurdles in obtaining a grant of Probate when the will-maker dies. Moving forward, it is best practice for estate planning solicitors to record the meeting (with consent) as this can assist in proving that the relevant remote execution procedure was complied with. Alternatively, an affidavit can be prepared to document each step taken to comply with the procedure.
If you have recently executed a Will remotely, it is worth re-visiting them to ensure that the relevant remote execution procedure has been complied with.
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