By Fabio Salemi – Associate
The Victorian Government has recently made changes that allow Wills to be signed and witnessed via audiovisual link, using platforms such as Zoom and Microsoft Teams.
The legislative changes enabling electronic signing and witnessing were prompted by the mandatory lockdowns following COVID-19, which impacted people’s ability to execute important estate planning documents, resulting in a now permanent regime called the remote execution procedure that is contained in the Wills Act 1997 (the Act).
Prior to the regime, it was well-established law in Victoria that a Will would not be valid unless it was signed by the Will-maker with at least two witnesses in the Will-maker’s physical presence.
With a view to bringing the Act in line with our increasingly digital society, a Will can now be validly signed and witnessed electronically, provided the remote execution procedure is strictly followed.
The most significant aspects of the remote execution procedure are as follows:
- At least one of the witnesses must be a special witness (an Australian legal practitioner, justice of the peace or another prescribed person as defined by the Act);
- The Will-maker and witnesses must be able to see each other clearly at all times, either in person or via audiovisual link;
- The remote execution procedure must be carried out within Victoria and on the same day and time;
- The Will-maker must sign the Will with both witnesses clearly seeing the Will-maker’s signature;
- An electronic copy of the Will signed by the Will-maker must be transmitted to the witnesses for signing; and
- The special witness must sign the Will last, after ensuring that the remote execution procedure has been strictly followed.
The version of the Will that has been checked and signed by the special witness becomes the Will-maker’s valid Will.
It is important to note that this procedure can also be used to revoke or alter a Will, or to execute a codicil.
In summary, the remote execution procedure provides benefit insofar as it reduces time delays and eliminates the requirement for all witnesses to be in the same room together for signing, but the special witness must ensure that the remote execution procedure has been strictly followed, otherwise the Will may be deemed invalid.