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If you electronically signed your will during a Covid-19 lockdown, you may need to consider re-signing it in person
During the worst of the Covid-19 pandemic, Victorian legislators raced to adapt some key legal services to online formats, including will-making. However, recent case law suggests that some electronically signed wills may unintentionally cause future legal complications.
What are the usual requirements for signing a will in Victoria?
Victorian laws have specific requirements for a will to be valid, including:
- The will is in writing
- The will is signed by the testator, who is the person making the will (there are a few exceptions to this)
- The testator intends to make the will
- The testator signs the will in the presence of at least two witnesses
- The testator and the witnesses sign and date the will according to specific legal requirements (also known as executing the will).
When a will meets these requirements, it has a better chance of being admitted to probate by the Supreme Court. Probate is the legal permission given to an executor to wind up the testator’s estate and distribute any assets.
These requirements help to ensure that the testator:
- Intended to make the will
- Knew that they were making the will
- Was not pressured to make their will in a certain way.
If a will does not meet these requirements, the Court may decide the will is invalid, and the estate may not be distributed according to the testator’s wishes. It can also leave the estate vulnerable to legal action.
How did the Victorian Covid-19 lockdowns affect will-making laws?
These will-making requirements often meant that it was convenient for testators to sign their wills in their lawyers’ offices, in the presence of the witnesses. However, the strict Victorian lockdowns made such face-to-face meetings impossible.
The Victorian Government’s response was to pass emergency measures in May 2020. The measures, known as electronic signature and remote witnessing, allowed wills to be executed via video conference (for example, Zoom). In 2021, a remote execution procedure in the Victorian Wills Act replaced the regulations.
The remote execution requirements are detailed and technical. They include:
- Holding a video conference with the testator and both witnesses
- Ensuring the witnesses can see the testator signing the will
- Transmitting the signed will to one witness to sign
- Then transmitting the will to the other witness to sign
- Completing these actions on the same day
- All parties providing a statement that the will was executed according to the remote execution procedure.
It is also wise to make a video recording of the entire process.
These requirements help to safeguard the testator against fraud, abuse or coercion.
Why are there potential issues with electronically signed wills?
There are concerns about electronically signed wills because of the October 2022 decision in Re Curtis. The case illustrates how a small detail led to a significant problem.
In June 2021, during a Covid-19 lockdown, the testator made a will using the remote execution requirements under the Victorian Wills Act.
The process took place via Zoom video link. First, the testator signed the will and then transmitted it through the DocuSign platform to the witnesses, who also signed it. The entire process was recorded.
However, the testator’s computer was just out of the camera frame when he was signing the document. Even though the testator appeared on camera, the witnesses could not see him signing.
A few weeks later, the testator passed away. When the executor of the will applied for probate, the Registrar of Probates questioned whether the execution met the legal requirements, specifically that the witnesses could clearly see the testator signing the will.
The Victorian Supreme Court found that the electronic signature requirements were not met because the testator’s computer was out of frame when he signed the will. It meant the will was not valid.
However, the Court said the will could be considered an informal will and probate was granted on that basis.
What is an informal will?
An informal will is a document that the testator intends to be their will. But for whatever reason, the document was incorrectly executed under Victorian laws, so it is not a valid will. Rather than finding it invalid, in limited circumstances a Court can declare it an informal will, allowing for a grant of probate.
In the Curtis case, the video was evidence of the testator’s intention to make a will.
Having the will declared informal seems like a convenient solution to the problem, but there is more to consider. For example, a Court hearing is necessary. In preparation, the executor must investigate, gather evidence, and engage lawyers. Even then, there is no guarantee that the Court will declare a will to be informal, which may delay finalising and distributing the estate.
Other issues with informal wills include:
- An increased risk of disputes among potential beneficiaries
- Increased stress, especially on the executor
- Unforeseen legal fees due to increased complexity
- The possibility that the Court will find the will invalid and make no informal will declaration
It shows that an electronically signed will is, at best, at risk of increased Court scrutiny to ensure that it meets all remote execution requirements. At worst, it may be declared invalid and the estate treated as if there is no will (an intestate estate).
What should I do if I have an electronically signed will?
The Curtis decision demonstrates the uncertainty around electronically signed wills, even when there is a video recording. The Court may declare that a problematic electronic will is informal, but it may also result in increased delays, costs, and stress.
For these reasons, we think it is best to be cautious. We recommend executing a new will in person if you have previously made an electronically signed will. The inconvenience is a small price compared with the possible cost to your estate if a Court must decide whether your will is valid.
The final word
Electronically signed wills were necessary during the Victorian Covid-19 lockdowns. However, they imposed extensive and complex legislative requirements necessary to protect vulnerable testators.
You should consider making a new will in person because it will help to avoid uncertainty. You may also wish to consider whether you need to change your will.
