Remote wills can be a useful tool. Justice McMillan in the Victorian Supreme Court authority Re Curtis gave guidance on the requirements of the remote execution procedure under s8A of the Wills Act 1997 (Vic). The dearth of further cases points to a lack of take up due to the strict requirements.
Tasman Ash Fleming, barrister and nationally accredited mediator (AMDRAS) and adjunct lecturer at the College of Law, provides commentary on this significant case, which considers whether a will witnessed via audio-visual link and executed through DocuSign can satisfy the formal requirements for a valid will — and what happens when it does not.
This article revisits the practical implications of the Court's findings for lawyers advising clients on remote will execution, and the best-practice steps that should be followed to avoid a will being admitted to probate only as an informal will.
What Makes a Will Valid?
Before turning to Re Curtis, it is worth revisiting the foundational requirements for a valid will in Victoria. Under s7 of the Wills Act 1997 (Vic) (‘Wills Act’), a will must be in writing, signed by the testator, and witnessed by two people who are present at the same time as the testator signs.
Beyond the formal requirements, testamentary capacity is essential. The testator must satisfy the test established in Banks v Goodfellow, which requires that the testator understands they are making a will, appreciates the extent of their assets, recognises who may have a claim to their estate and can weigh those claims, and is not suffering from a mental disorder that impairs their capacity.
"Wills can be admitted to probate as an informal will, pursuant to s9 of the Wills Act, but the Court must be satisfied that the testator had testamentary capacity and knew and approved of the will," Tasman explains. "A will which fails as a formal will, will not be admitted to probate if the Court is not satisfied there is capacity."
Remote Wills: A COVID-Era Reform
The concept of a remote will — one witnessed by someone not physically present with the testator — emerged from the COVID era. In response to lockdown restrictions, the Victorian Parliament introduced amendments to the Wills Act 1997 permitting remote execution, with those changes coming into force in 2021.
"In Victoria a remote will is one which has been witnessed by someone who is not physically present with the testator," Tasman explains. "The reasons for the change refer to a unique set of circumstances. Let's walk it back to the beginning. During the lockdown restrictions, the Victorian parliament implemented a broad range of changes to instruments, which included changes to the Wills Act 1997 to allow remote execution.”
“Although born of the pandemic, this process is suited to a society which is becoming more and more online. Nevertheless, the uptake has been limited."
Under s8A, a remote will may be valid if the prescribed procedure is followed. The provision allows a will to be witnessed via audio-visual link. A key requirement is the appointment of a "special witness" — typically the testator's lawyer — who is responsible for overseeing the process and must sign the will last, regardless of whether they are physically present with the testator.
Once the testator and any physically present witnesses (other than the special witness) have signed, the will is transmitted electronically to any remote witness, who must be reasonably satisfied that the document they are signing is the same document signed by the testator, ensure the required statements appear on the will, and sign while the testator clearly sees the signature being made via audio-visual link.
The special witness is tasked with ensuring that the process complies with s8A.
Key Findings: What Happened in Re Curtis?
In Re Curtis, the testator and witnesses executed the will using DocuSign. Despite the legal team's careful attention to the requirements of s8A, the process ultimately fell short of what the provision demands.
"In Re Curtis, the testator and witnesses signed via Docusign, which is an online signature tool," Tasman explains. "The facts in Re Curtis demonstrated that the legal team paid particularly close adherence to the requirements in 8A. However, the witnesses could not properly see the actual signing. The Court held that the requirements in 8A had not been met."
The Court's focus was on the visibility of the signing — a requirement that goes to the heart of the remote execution procedure. The witnesses' inability to clearly observe the testator's signature being made was fatal to the will's validity as a formal will.
However, the matter did not end there. The Court went on to consider whether the will could be admitted to probate as an informal will under s9 of the Wills Act.
"The Court held in this case that the will was an informal will as it satisfied the elements of an informal will, being in particular that the deceased intended it to be their will and they had testamentary capacity," Tasman notes.
Practical Risks: When Formal Wills Become Informal Ones
The outcome in Re Curtis illustrates a tension that practitioners should be alert to: a will that fails the formal requirements of s8A does not automatically fail altogether, but the path to probate as an informal will is neither straightforward nor inexpensive.
"The risk of not complying with the conditions is 8A, particularly those where the process set out in Re Curtis is not followed to a tee," Tasman warns. "It is likely that the requirements won't be met, that it will fail as a formal will. However the tension will then go to whether the will can be admitted to probate as an informal will."
"This may be complicated by a lack of evidence and additional expense. It may indeed be difficult to obtain probate as an informal will."
An informal will is also not a guarantee, In Re O'Day [2023] VSC 169 Justice Moore decided an application for an informal will where the requirements had not been strictly met.
Tasman also notes that the practical need for remote wills has diminished since the height of the pandemic. "Remote wills are less likely given the easing of the restrictions which existed at the times. Solicitors can make home visits for example in cases where required."
Best Practice: Justice McMillan's Guidance
Following Re Curtis, Justice McMillan set out a comprehensive summary of what is required for a will to be validly executed under the remote execution procedure. Tasman's advice to practitioners is direct.
"Overall, it would be best avoided. If it is absolutely necessary then I would suggest multiple cameras and devices/screens which enable to witnesses to see absolutely the entire room that the testator is signing in and able to see the testator clearly signing as well as the actual screen view if it is an electronic will."
Justice McMillan's summary in the judgment provides an authoritative checklist for practitioners who do proceed with remote execution. Among the key requirements:
- The will must be in writing and signed by the testator (or a substitute signatory), with the signature potentially being an electronic signature.
- At least two witnesses must sign, one of whom must be a special witness.
- The required statements must appear on the will.
- The testator's signature must be made with the intention of executing a will, in the presence of two or more witnesses — who may attend by audio-visual link.
- Witnesses must clearly see the testator's signature being made, whether by audio-visual link or a combination of physical presence and audio-visual link.
- Witnesses must sign in the prescribed order: physically present witnesses first (excluding the special witness), then remote witnesses, with the special witness signing last.
- All formalities must be carried out within Victoria, on the same day.
As Justice McMillan stated:
"Thus, in summary, the following is required for a will to be valid and executed in accordance with the remote execution procedure..."
The full checklist set out in the judgment is essential reading for any practitioner advising on remote will execution.
Re Curtis serves as a timely reminder that the convenience of digital tools does not override the strict procedural requirements of the Wills Act 1997. Even where a legal team acts diligently and in good faith, a technical failure — such as witnesses being unable to clearly observe the signing — can be enough to invalidate a will as a formal instrument. Where it is unavoidable, meticulous compliance with every element of s8A, alongside the guidance of Justice McMillan, is essential.
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Tasman Ash Fleming is a barrister, nationally accredited mediator (AMDRAS), and adjunct lecturer at the College of Law. He practises in wills and estates, commercial litigation, and dispute resolution.