On 17 October 2022 the Court delivered a ruling on the amendments to the Wills Act 1997 (Vic) relating to the “remote execution procedure” for wills.
The Honourable Justice Kate McMillan of the Supreme Court of Victoria delivered the ruling in proceedings S PRB2021 14624 being the estate of Carl John Curtis, deceased.
The plaintiff sought a grant of probate of a will purportedly executed in accordance with the remote execution procedure pursuant to the Wills Act 1997 (Vic) in the newly introduced section 8A (introduced in April 2021).
The Court reserved its decision as to whether the will was executed in accordance with the remote execution procedure. However, the Court was satisfied that, even if the will was not executed in accordance with the procedure, it would be admitted to probate as an informal will. On this basis, on 2 December 2021, the Court ordered that probate of the will be granted. Probate of the informal will was granted on 9 December 2021.
Subsequently, the Court granted leave to counsel, Richard Boaden and Nicholas Baum, to make submissions to the Court as amicus curiae (“friends of the court”) on the following issues:
- the requirements for compliance with the remote execution procedure; and
- whether execution of the will complied with the remote execution procedure.
On 17 October 2022, Justice McMillan found that the will was not executed in accordance with the remote execution procedure and was therefore not a validly executed will.
When assessing whether the witnesses could clearly see the signature being made by the testator, Her Honour noted:
“It is only by seeing the testator operating the computer or device to apply the signature and the signature appearing on the electronic document that the witnesses can be truly satisfied that it is the testator who has applied the electronic signature.”
In her ruling, Her Honour also noted 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 comply with the remote execution procedure will necessarily be admitted as informal wills.”
Paragraph 83 of the ruling lists the requirements for a will to be valid and executed in accordance with the remote execution procedure.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.
The full ruling in the matter of the estate of Carl John Curtis, deceased can be found on AustLII.