For a Will to be valid in Western Australia, the Will must be:
- In writing;
- Signed by the testator[1] or some other person in the testator’s presence (at their instruction);
- Signed in the presence of at least two witnesses; and
- Signed and attested by the witnesses in the presence of the testator.[2]
This made it challenging to execute a valid Will during COVID-19 (‘pandemic’) because testators and witnesses often could not be in the same room. The question arose, how could we execute our Wills during the pandemic? Notwithstanding the pandemic, it might not be practical for the testator and witnesses to be physically present when signing a will. Amidst the pandemic, the COVID-19 (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic)[3] measures were enacted in Victoria and modified the application of provisions in the Wills Act[4] to enable signatures to be executed electronically by way of audio-visual link.[5]
A recent decision in Victoria regarding digital Wills gives us hope that Western Australia’s outdated Will regime may one day follow suit. In Re Curtis[6], before the Deceased’s passing, he executed his Will during an online video call with two witnesses present. During the call, the Deceased executed his Will using an online program called DocuSign.[7] For a valid Will to be executed in Victoria, the two witnesses and testator must ‘clearly see’ the signature being made or drawn (including by audio-visual link).[8] However, in the present case, whilst the two witnesses could see the Deceased operating his computer from the video, they could not ‘clearly see’ that the actions he was taking in the video directly led to his signature ‘being made’.[9]
Court’s Decision
The Court held that the remote execution of the Will did not comply with the requirements of the electronic signing provisions because the witnesses could not ‘clearly see’ the signature ‘being made.[10] In other words, the witnesses could see the Deceased operating a computer, but they could not see what he was doing while operating the computer.
However, the Will was still admitted to Probate as an informal Will [11] because the Court was satisfied that the Deceased intended the document to be his Will.[12]
This is because the video call with the Deceased was recorded. By analysing both the conduct of the witnesses and testator throughout the call, the Court was satisfied (on the balance of probabilities)[13] that the Deceased confirmed the document represented his testamentary intentions.
The key takeaway in this case for those in Victoria is that for a Will to be executed validly by video call, the parties must ensure they can clearly see the testator operating the computer when executing the Will.
For those in Western Australia, the reality of executing Wills in an online forum is far from a possibility. The concept will one day extend to the execution of affidavits and statutory declarations. Legislative reform should be encouraged in order to ensure that documents can be formalised by using these kinds of digital signing methods.
[1] The testator is the person who makes the will with the intention of having their estate administered in the form prescribed by their Will.
[2] Wills Act 1970 (WA) s 8(a)-(d).
[3] COVID-19 (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) pt 5.
[4] Wills Act 1997 (Vic).
[5] Re CURTIS [2022] VSC 621 [16].
[6] Re CURTIS [2022] VSC 621.
[7] Ibid [27].
[8] Wills Act 1997 (Vic) s 8A (4)(a); s 8A (7)(c).
[9] Re CURTIS [2022] VSC 621 [118].
[10] Ibid.
[11] Probate is the judicial process by which a Will is established as being a document that truly represents the last testament or wishes of the Deceased.
[12] Wills Act 1997 (Vic) s 9(1); Re CURTIS [2022] VSC 621 [162].
[13] Evidence Act 2008 (Vic) s 140.