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When is a Will witnessed online not actually witnessed?

This isn’t a trick question about a Will. Certainly the Supreme Court didn’t think it was.

Unfortunately, it seems that Victoria’s new procedures for witnessing a Will online do not work quite as well as we might have hoped.

It all goes back to Covid… again

Re Curtis [2022] VSC 621 is a recent decision concerning a Will made during one of Melbourne’s endless lockdowns.

In this case, Mr Curtis could not attend his lawyer’s offices to make a Will. The Will was therefore witnessed using Zoom and signed using Docusign. The Willmaker used a PC to conduct the Zoom meeting and a laptop to operate Docusign. Although he initially held the laptop up to his PC’s camera, the Willmaker than placed the laptop offscreen to operate Docusign. Finally, the witnesses each shared their screen when they counter-signed, meaning the Willmaker could see the witnesses’ faces but not see them operate their computers.

A recording of the meeting was made.

It’s hard to put pen to paper in cyberspace

The Wills Act 1997 was updated during the pandemic to facilitate electronic execution. Among other things, the changes require that the Willmaker and the witnesses must clearly see each other’s signatures being made.

In Curtis, the Court held that the requirement to ‘clearly see’ signatures being made was not met. This was because each party could not see the other signatories operate their devices, nor could they see the screens of those devices as the signatures were made.

It was still admitted as an informal Will

The Will was admitted to Probate as an informal Will, although the Court noted that electronic Wills will be subjected to greater scrutiny and that parties should not rely on admission as an informal Will as a solution to problems created by electronic execution. The fact that there was a recording of the meeting was helpful on this point.

“Ready when you are, Mr DeMille”

It would appear that witnessing Wills online may require separate devices or cameras which are pointed at the screens of each party’s computer as they make their signatures. Signing sessions might begin to resemble film sets.

Better make sure that the camera captures your good side.

Contact our team at Aintree Group Legal for more information on Wills.