The courts have highlighted the need to make sure Wills executed electronically during the Covid-19 pandemic comply with all protocols. If there’s any doubt, it’s best to re-sign the Will in person and avoid any dispute later on, writes Attwood Marshall Lawyers Wills and Estates Senior Associate Hayley Condon.
Summary
In response to the lockdowns, border closures and social distancing measures implemented at the height of the Covid-19 pandemic, state governments across Australia passed laws allowing remote witnessing of signatures and the attestation of certain documents.
The laws allowed people to have their Wills executed remotely and were largely welcomed amid a flurry of activity in the estate planning space. The laws best served the elderly and those most vulnerable to contracting the virus, who were self-isolating in their own homes or in aged care facilities and unable to make it to their lawyers’ offices in person.
However, the specific protocols to be followed under the laws were complicated. Many experts have issued warnings about the pitfalls of remote execution. These include a higher risk of fraud and undue influence, as well as missed red flags around testamentary capacity. While undue influence is always a risk, the physical presence of witnesses and an estate planning lawyer makes it more difficult to occur at the point of signing. There is also the possibility of non-compliance with the protocols, rendering the Will ineffective.
Fears over an increase in the number of contested Wills have unfortunately been borne out, with some Wills that were executed remotely recently ending up in Court over their validity.
When the Registrar of Probates came across its first Will that had been signed under the remote execution procedure in 2021, the office referred the Will to the Courts due to uncertainty over compliance.
The case was Re Curtis [2022] VSC 621 and the Supreme Court of Victoria found in October 2022 that the witness and the testator did not clearly see each other’s signature being made. The execution of the Will therefore did not comply with the remote witnessing procedure – and was deemed invalid.
The judge hearing the case ended up admitting the Will to probate as an informal Will, after finding that Mr Curtis had testamentary capacity, that he knew and approved of the contents of the Will and had not been affected by any undue influence when making it. But the application could have ended up being a costly one, and the judge warned that Wills that do not comply with the remote procedure will not always be admitted as informal.
Now that there are no public health directions in place that limit movement, the outcome of this case should serve as a stark warning to those who have executed Wills electronically during the pandemic to re-sign or make new Wills in person with their witnesses and in the presence of an estate planning lawyer, to avoid any dispute after their passing.
Key lessons from the Curtis case
Even though most Covid-19 protective measures have become a thing of the past, the emergency protocols for remotely signing and witnessing documents have not been rolled back in their entirety and so remain an option for people executing Wills in some states such as Victoria and New South Wales.
Mr Curtis’s Will was found invalid because the execution of the document did not comply with the following four requirements of the protocol that applied in Victoria:
- The Will-maker was required to sign the Will with all the witnesses ‘clearly seeing’ their signature.
- Witnesses must have been ‘reasonably satisfied’ that the document they were signing was the same document signed by the Will-maker.
- The Will-maker was required to clearly see the signature of each witness being made, and
- The document that was checked and signed by the special witness must have been verified as the valid Will.
The recording of the deceased’s signing of his Will in the Curtis case only showed him sitting in front of the laptop from which the recording was being made; the laptop screen itself is not being visible. Further, the recording did not show the deceased’s image at the time the witnesses signed the Will, with no audible confirmation that he could see their screens when they signed.
The judge said Will-makers need to be aware of how important it is to observe the witnesses applying their signatures. The witnesses should also seek audible confirmation that the Will-maker can clearly see them signing and their finished signatures.
While the electronic execution protocols were different in each State and Territory that introduced such laws during the Covid-19 pandemic, Curtis’s case is an example of how the Will-maker and his witnesses fell afoul of the laws in Victoria.
Preventing opportunity for dispute is key
There have only been a handful of cases to make it to Court so far over similar scenarios where it is believed the protocols were not followed. However, there could be further challenges as more people who signed their Wills during Covid start passing away.
The electronic execution laws do not just apply to Wills either, the documents that can be witnessed by audio-visual link also include: a Power of Attorney or Enduring Power of Attorney; Appointment of Enduring Guardian; a deed or agreement; an affidavit; and a statutory declaration depending on the State or Territory that a person resides in.
The laws provided a great benefit to the public during a very uncertain time in the world when the outcome of the Covid-19 pandemic was unknown and many in the community were desperate to make a Will in fear that they might not survive the pandemic. But for anyone who executed a Will electronically during the lockdowns, now is the time to review their Will to ensure that they strictly followed the electronic execution protocol set out in the State or Territory in which they signed their Will.
If the electronic signing protocol was not followed, then the Will-maker should put a new Will in place signed in person or they risk that their Will may be deemed invalid by the Court after they pass away.
If a Will is found to be invalid and there is no earlier Will to fall back on, the rules of intestacy apply to the distribution of the deceased person’s estate and the Court will follow the formula set out in the Succession Act of the State or Territory in which you live at the time of your death. This may result in your estate not passing to those who you intended to benefit.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Given that the consequences of failing to follow the procedure perfectly are that the Will may be considered invalid, it’s best to be cautious and get the right legal advice to ensure that any Will or Power of Attorney executed during the Covid-19 pandemic and using the electronic signing protocols will be upheld.
If you need assistance drafting a Will, Enduring Power of Attorney, or simply want to better understand what documents ensure your assets are passed on to the right person after you are gone, please contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 any time.
You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
