A recent case heard in the Victorian Supreme Court regarding the proper execution of a will has highlighted some of the anomalies advisers and their clients need to take into account when using electronic signatures as the means of document approval.
Re Curtis [2022] involved a situation where a will was signed and witnessed electronically via a Zoom meeting as was allowable by the Victorian government as a temporary measure during the height of the COVID-19 pandemic.
The will-maker, Mr Curtis, had two computers set up for the occasion on 7 June 2021 – one to host the online meeting and a separate laptop that would facilitate the signing of the will.
Curtis died on 21 June 2022 and the Registrar of Probates noted there was uncertainty over whether the will had been executed properly and referred the matter to a judge for determination.
Concerns over the proper execution of the will were triggered by the fact the way the online meeting was set up meant the witnesses were unable to see the laptop being used to sign the will electronically.
Further, the court found the procedure may have breached section 8A(7)(c) of the Wills Act as there was no proof Curtis had clearly seen the two witnesses electronically signing the relevant documents either as there had been no acknowledgement of this from the will-maker.
The Zoom meeting had been recorded and it showed the witnesses had shared their screens when applying their electronic signature. But the court noted sharing of a screen, in general, may not be enough to demonstrate proper compliance with the law had been satisfied as the will-maker could not see the mouse pad used to facilitate the electronic signing.
Despite these breaches of the Wills Act, the Court held the Zoom recording was sufficient in this case for the will to be admitted to probate as an informal will.
When assessing this case and its outcomes, the Legal Practitioners’ Liability Committee pointed out the complexities involved in using digital means to approve official documents.
“To comply with the procedure, will-makers and witnesses need to position cameras and use screen-sharing functions to allow the will-maker and witnesses to clearly see the relevant person operating the computer or device to apply the electronic signature – including the mouse or touchscreen for example – while at the same time also observing the signature being applied on the document,” the committee stated.
“As part of this process, it will be important to obtain oral confirmation from the will-maker and witnesses during the audiovisual conference that they have observed the respective signatures being made.
“Practitioners should also prepare an affidavit documenting each of the steps taken to comply with the remote execution procedure, including how the witnesses and will-maker observed the signatures being made.”
Further the legal body recognised making a video recording of the proceedings, while not legally required, would be a useful practice to follow.
DBA Lawyers director Daniel Butler said there are lessons to be learned from this case for SMSF trustees and their advisers as well.
To this end, Butler suggested the digital execution of many SMSF documents may have been done incorrectly, potentially rendering them invalid.
He said the case sends an important message to advisers to get the SMSF trust deed and any other official documents signed electronically checked to affirm their legitimacy.
