Navigating the Complexities of Remote Witnessing
What You Need to Know
The way we approach legal processes has evolved significantly, especially in response to the challenges posed by the COVID-19 pandemic. One area that has seen substantial change is the execution of wills, particularly with the introduction of remote witnessing provisions. While these measures were initially temporary, some jurisdictions have adopted permanent changes to accommodate modern technology.
Here’s what you need to know about remote will execution and its implications.
What Are the Formal Requirements for Executing a Will?
To ensure a will is legally valid, it must meet specific formal requirements, including:
Written Format: The will must be documented in writing.
Signature: The testator (person making the will) must sign it, or direct someone else to sign it in their presence.
Witnesses: The signature must be witnessed by at least two people who are present at the same time.
Attestation: The witnesses must sign the will in the presence of the testator.
What Does "Presence" Mean?
Traditionally, "presence" meant physical proximity, but the pandemic forced governments to reconsider this definition, and how far the meaning of "presence" can be stretched when using tools like video conferencing.
How Have Australian States Responded?
During the pandemic, several Australian states and territories introduced temporary legislation to allow remote witnessing of wills via audio-visual links. For example:
ACT: The COVID-19 Emergency Response Act 2020 allowed remote witnessing until December 2022.
NSW: Provisions under the Electronic Transactions Act 2008 remain operative.
VIC: The Wills Act 1997 includes permanent provisions for remote execution.
QLD, NT, SA, TAS, WA: No specific provisions for remote execution of wills.
While these measures were helpful during the pandemic, many have since expired, leaving some jurisdictions without clear guidelines for remote will execution.
Challenges in Remote Will Execution
Remote witnessing has introduced new complexities, as demonstrated in recent court cases:
Re Curtis [2022] VSC 621
This case highlighted the importance of ensuring that all parties involved in remote will execution can clearly see the signing process. The court found that the witnesses did not clearly see the testator sign the will, raising questions about its validity. Ultimately, the court admitted the document as the valid will, but the case underscores the importance of following remote witnessing procedures meticulously.
Re O’Day [2023] VSC 169
In this case, the deceased was terminally ill and unable to sign the will in person. The court admitted the document as an informal will, relying on evidence that the deceased intended the document to be her will and had provided detailed instructions.
Re Sheehan [2021] QSC 89
Here, the testator missed signing one page of the will during a remote witnessing session. Despite this oversight, the court admitted the document as an informal will, as the recording showed the testator’s clear intent and understanding of the will’s terms.
Key Takeaways for Remote Will Execution
Follow Formal Requirements: Ensure the will is signed and witnessed according to the rules of your jurisdiction.
Record the Process: Video recordings can serve as crucial evidence in court if the will’s validity is questioned.
Keep Detailed Notes: Document the testator’s instructions and the signing process thoroughly.
Understand Jurisdictional Differences: Remote witnessing rules vary across states and territories, so it’s essential to know the specific requirements in your area.
Prepare for Probate: If a remotely executed will doesn’t meet formal requirements, be ready to provide evidence to prove the testator’s intent and capacity.
Looking Ahead
As technology continues to evolve, the legal landscape will likely adapt further to accommodate new ways of executing and witnessing wills.
While remote witnessing offers convenience, it also requires careful adherence to legal procedures to ensure the validity of the will. If you’re considering remote will execution, consult a qualified solicitor to navigate the process and avoid potential pitfalls.
