Case study: Re Curtis [2022] VSC 621- Cautionary tale of executing Wills electronically
The Victorian Supreme Court decision handed down by Her Honour Justice Kate McMillan in Re Curtis [2022] VSC 621 serves as a sobering reminder for all practitioners in all Australian jurisdictions to check the validity of their electronically signed and witnessed Wills made with clients during the heights of COVID lockdowns in 2021 and subject to electronic execution amendment laws.
The brief facts of this matter were:
On 7 June 2021, Mr Adam Carl Curtis (“the Testator”) executed a Will using the electronic signing platform known as Docusign whilst concurrently using audio-visual platform Zoom with two witnesses.
In response to the COVID lockdowns, the intended method of signing was made pursuant to the newly enacted section 8A amendment of the Wills Act 1997 (Vic) referred to as “the remote execution procedure’. This procedure required that the Testator and all witnesses to ‘clearly see’ the signatures being made by each other by audio-visual link and that one of the witnesses ‘present’ to the signing of the Will be a ‘special witness’ (defined as an Australian Legal Practitioner or Justice of the Peace).
Despite the amendment, section 7 (1) of the Wills Act remained unchanged and required that a Will was not valid unless:
It is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
The signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will; and
The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
At least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.
During the course of the Zoom meeting, it was possible for the parties (being the Testator and the two witnesses) to only see each other’s faces and the cursor of their mouse moving but not their hands operating the computer to apply the ‘sign’ tab specified by Docusign or the surrounds within the rooms the parties were in. The meeting and execution was also recorded.
Subsequently, the Testator died on 21 June 2022.
The Supreme Court registrar, upon receiving the Will subject to an application for a Grant of Probate, referred the matter to the Court as to whether the Will was executed in accordance with the proper remote execution procedure under section 8A of the Wills Act and could be admitted Probate as a formal Will.
Findings
The Court held that the Will did not satisfy the requirements of a formal Will as the witnesses could not ‘clearly see’ the testator hands applying his electronic signature to his Will under the remote execution procedure outlined by section 8A.
Conversely, the Court also held that the Testator could not have ‘clearly seen’ the witnesses sign the Will and apply their signatures either, despite their respective screens being ‘shared’ with the Testator.
The Court outlined that for the purposes of section 8A (4) of the Wills Act ‘clearly seeing’ the signature ‘being made’ required the witnesses “to observe the testator operating the computer or device to apply the signature, and the signature appearing on the electronic document as they do so. This may be achieved by the sharing their screen whilst they appear on the audio-visual link. Alternatively, in circumstances like the present, it may require adjusting the angel of the camera on the device from which the audio-visual link is being operated to allow the witnesses to see the testator, their actions and the document. It is only by seeing the testator operating the computer or device to apply the signature and the entire appearing on the election document that the witnesses can be truly satisfied that it is the testator who has applied the electronic signature.”
However, the Court held that the Will, whilst not satisfying the formalities under section 7(1) of the Wills Act, was admitted to probate as an informal Will pursuant to section 9 of the Wills Act.
In obiter, Her Honour made the recommendation in respect of the remote witnessing procedure under section 8A of the Wills Act that”… it would be prudent for witnesses to instruct a testator on the importance of observing the witnesses applying their signatures and to seek audible confirmation that the testator can clearly see this… in circumstances where an audio-visual link affords only a limited view of the location that a testator is in, it is impossible to know whether any other person is present and exerting undue influence over the testator, or appearing off screen and operating the mouse without the witnesses knowing.”
Not before concluding the judgment, Her Honour stated that:
“ as this proceeding demonstrates, careful attention needs to be paid to the requirements of the remote execution procedure when seeking to execute a will by audio-visual link. Notwithstanding the outcome of this proceeding, practitioners should not assume that wills that do not complete with the remote execution procedure will necessarily be admitted as informal wills. The determination of whether the Court is satisfied that the requirements under section 9 of the Wills Act have been met will depend on the facts and circumstances of each particular proceeding.”
Relevance of Re Curtis to NSW
Despite the difference in jurisdiction, Re Curtis draws out a potentially similar and conflicting interaction in NSW between section 6 (1) of the Succession Act 2006 (NSW) (How should a will be executed?) and Schedule 1 of the Electronic Transactions legislation, including the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW). Pursuant to section 14F of the Electronic Transactions Act, a Will is defined as a ‘document’ capable of electronic execution.
As section 6 (1) of the Succession Act states (similarly to section 7(1) of the Wills Act):
A will is not valid unless:
It is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator; and
The signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
At least 2 witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
In comparison, section 14G (2) of the Electronic Transactions Act 2000 (NSW) provides that a person witnessing the signing of a document by audio visual link (the witness) must-
Observe the person signing the document (the signatory) sign the document in real time, and
Attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, and
Be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and
Endorse the document, or the copy of the document, with a statement –
(i) Specifying the method used to witness the signature of the signatory; and
(ii) That the document was witnessed in accordance with this section.
Whilst not the same as section 8A of the Wills Act, there is a similar requirement for a signatory in section 14 (a) of the Electronic Transactions Act “to observe the person signing the document …sign in real time” .
The same set of circumstances in Re Curtis applied to the equivalent NSW laws could likely challenge the extent of electronic execution of Wills in NSW. To date, there is no case law which exists in NSW as to the interaction between the relatively unchanged Succession Act and the Electronic Transactions legislation.
If you have signed a Will electronically and are unsure of its validity or would like some advice, please contact us at Peacockes Solicitors at admin@peacockes.com or on (02) 6882 3133.