Re Curtis
[2022] VSC 621
•17 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2021 14624
| IN THE MATTER of the estate of CARL JOHN CURTIS, deceased | |
| APPLICATION BY: | |
| ADAM CARL CURTIS | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF ORDERS: | 2 December 2021 |
DATE OF RULING: | 17 October 2022 |
CASE MAY BE CITED AS: | Re Curtis |
MEDIUM NEUTRAL CITATION: | [2022] VSC 621 |
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PROBATE – Remote execution procedure – Requirement that witness and testator clearly see each other’s signature being made – Will not executed in accordance with remote execution procedure – Will admitted to probate as informal will – Wills Act 1997 (Vic) ss 7, 8A, 8B, 8C, 8D, 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | KHQ Lawyers | |
| Amici Curiae | Mr R Boaden with Mr N J Baum |
HER HONOUR:
Introduction
Carl John Curtis (‘the deceased’) died on 21 June 2021, aged 76 years.
The deceased left a will dated 7 June 2021 (‘the will’ or ‘the deceased’s will’). By the will, the deceased appointed his son, Adam Carl Curtis (‘the plaintiff’), as executor of the will and trustee of his estate. The will left the residue of the deceased’s estate to the plaintiff.
By originating motion filed 2 September 2021, the plaintiff sought a grant of probate of the deceased’s will.
The deceased’s will was purportedly executed in accordance with the ‘remote execution procedure’ set out under the Wills Act 1997 (Vic) (‘the Wills Act’), in the newly introduced s 8A (‘the remote execution procedure’).
At the date of execution of the will, public health directions were in effect to address the health risk posed by the spread of COVID-19.[1] In Melbourne these directions restricted the circumstances in which persons ordinarily residing in the metropolitan area could leave their residence and visit another person’s residence. Execution of a will was not a specified reason to leave a person’s premises or to enter another person’s premises. The deceased resided in metropolitan Melbourne at the date the will was executed.[2]
[1]The Stay at Home Directions (Metropolitan Melbourne) were made on 3 June 2021 by Professor Allen Cheng, Acting Chief Health Officer, pursuant to s 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic).
[2]The Area Directions (No 10) were also made by Professor Cheng on 3 June 2021, under which ‘metropolitan Melbourne’ was defined to include 31 specified local government areas for the purposes of the Stay at Home Directions (Metropolitan Melbourne). Amongst these local government areas was the City of Whittlesea, where the deceased resided.
The plaintiff’s application was the first application made to the Court for a grant of probate in respect of a will purportedly executed in accordance with the remote execution procedure. On 30 September 2021, the Register of Probates informed the plaintiff that due to uncertainty around compliance with the remote execution procedure, the application should be determined by a Judge of the Court.
The matter was listed for directions on 22 October 2021. Ultimately, that hearing was vacated and the plaintiff’s application was considered on the papers.
In the unique circumstances, the Court reserved its decision as to whether the deceased’s will was executed in accordance with the remote execution procedure. The Court was satisfied that, even if the will was not executed in accordance with the remote execution procedure, it would be admitted to probate as an informal will, pursuant to s 9 of the Wills Act. On this basis, and in consideration of the best interests of the estate, the Court ordered that probate of the will be granted on 2 December 2021. On 9 December 2021, probate of the will was granted to the plaintiff.
Subsequently, the Court granted leave to Mr Richard Boaden and Mr Nicholas Baum of counsel to make submissions as amici curiae[3] on the following issues:
(a) the requirements for compliance with the remote execution procedure; and
(b) whether execution of the will complied with the remote execution procedure.[4]
[3]See Levy v State of Victoria (1997) 189 CLR 579, 604–5 (Brennan CJ) for a discussion of the role of an amicus curiae; see also Bropho v Tickner (1993) 40 FCR 165, 172–3 (Wilcox J).
[4]The plaintiff did not object to the grant of leave to the amici curiae to make submissions on these matters.
Given the novel and important issues raised by the application, the Court considered it desirable to deliver reasons for the purpose of providing guidance to the profession.
For the reasons that follow, the Court determined that the deceased’s will was not executed in accordance with the remote execution procedure and therefore was not a valid will.
Applicable legislation
Requirements for a valid will
Since 1837, the requirements for a valid will in Victoria have remained relatively unchanged.[5] These requirements are currently reflected in s 7(1) of the Wills Act:
A will is not valid unless—
(a)it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b)the signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.
[5]These requirements have been set out in various statutory provisions over time, namely: Wills Act 1837 (UK) s 9; Wills Statute 1864 (Vic) s 7; Wills Act 1890 (Vic) s 7; Wills Act 1915 (Vic) s 7; Wills Act 1928 (Vic) s 7; Wills Act 1958 (Vic) s 7; Wills Act 1997 (Vic) s 7.
These requirements serve a number of interrelated functions.[6] Not only do they aim to protect against fraud, given that the testator will not be able to give evidence, but they also seek to impress the solemnity of the moment upon the testator.[7]
[6]See Andrew G Lang, ‘Formality v Intention – Wills in an Australian Supermarket’ (1985) 15(1) Melbourne University Law Review 82, 86–9.
[7]Ibid.
Wills are currently exempt from the provisions of the Electronic Transactions (Victoria) Act 2000 (Vic) (‘Electronic Transactions (Victoria) Act’) which enable certain transactions to take place by electronic communications.[8]
[8]Electronic Transactions (Victoria) Act 2000 (Vic) ss 6A, 7(1), pt 2 div 2; Electronic Transactions (Victoria) Regulations 2020 (Vic) r 6.
The remote execution procedure
Background
On 25 April 2020, the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) came into operation. Amongst other things, that Act provided that the Governor in Council could make regulations that disapplied or modified the application of any relevant law that regulated the witnessing, execution or signing of wills.[9]
[9]COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) s 4(1)(l).
On 12 May 2020, the Governor in Council made the COVID-19 (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic). Part 5 of those regulations modified the application of provisions of the Wills Act to allow for electronic signatures and witnesses to be present by audio-visual link. The operation of pt 5 is not at issue in this proceeding. These regulations expired on 26 April 2021.
On 26 April 2021, pt 12 of the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (‘the Justice Legislation Amendment Act’) amended the Wills Act to establish the remote execution procedure. The second reading speech for the Bill which became the Justice Legislation Amendment Act included the following:
The emergency electronic signing and remote witnessing measures were urgently introduced to ensure Victorians were able to continue to fulfil their legal and other obligations during the COVID-19 lock-down. The emergency measures were subsequently well received by the legal and business communities for the procedural flexibility and efficiencies they afforded.
The permanent electronic signing and remote witnessing measures in this Bill will ensure that these benefits continue to be enjoyed by the community. These measures will improve access to justice for people living in regional or remote Victoria, and for people with limited mobility due to age, disability or financial hardship, as important legal documents will be able to be executed without leaving ones’ home.
…
The amendments to the [Wills Act] provide for electronic signing and remote witnessing by audio-visual link, if in the presence of a ‘special witness’ (defined as a legal practitioner or justice of the peace), of wills, codicils and other testamentary writing.
…
The electronic signing and remote witnessing reforms are a significant step forward in modernising the law in Victoria for the digital age. Given that these reforms will have broad impacts on the community, a number of safeguards have been included in the Bill to ensure the rights and interests of vulnerable Victorians continue to be adequately protected, and to ensure these measures operate effectively with other relevant laws.
The Bill has been designed to minimise any impact on national consistency of existing electronic commerce measures. The amendments to the [Electronic Transactions (Victoria) Act] have limited impact on the existing provisions and are modelled as closely as possible on similar approaches taken in Queensland and New South Wales. They are also general in nature, with more specific signing and witnessing requirements for specific categories of legal documents contained in Principal Acts taking precedence (such as the [Wills Act] for wills … ).
Procedural safeguards for witnessing by audio-visual link have been included, such as requiring the witness to certify that an audio-visual link process was used. These safeguards are intended to protect against the inappropriate use of these measures, including the risk of fraud or abuse of vulnerable Victorians.[10]
[10]Victoria, Parliamentary Debates, Legislative Assembly, 18 February 2021, 444–6 (Melissa Horne).
Relevant provisions
Following the amendments, s 7 of the Wills Act includes the following subsections:
(5)For the purposes of this section, a will may be executed by using the remote execution procedure and that will is a valid will.
(6)For the purposes of this section, a signature may be an electronic signature if the remote execution procedure is used.
(7)For the purposes of this section ‘in the presence of’ includes being present by audio visual link in accordance with the remote execution procedure.
Newly enacted s 8A of the Wills Act, titled ‘Remote execution procedure’, is in the following terms:
(1)A will may be executed under this Act in accordance with the remote execution procedure set out in this section.
(2)One of the witnesses must be a special witness and, if more than one witness qualifies as a special witness, only one of the special witnesses is to be the special witness.
(3)All elements of the remote execution procedure must be carried out on the same day and within Victoria.
(4)The testator must either—
(a)sign the will with all witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link; or
(b)direct another person (the substitute signatory) to sign the will with all witnesses clearly seeing and hearing the direction of the testator to the substitute signatory and all witnesses and the testator seeing the substitute signatory’s signature being made on behalf of the testator by audio visual link or a combination of physical presence and audio visual link.
(5)Subject to subsection (6), any witness who is physically present with the testator then signs the will in accordance with the requirements for witnesses under this Act.
(6) The special witness must sign the will as the special witness last, whether the special witness is physically present with the testator or not.
(7)The will is then transmitted by electronic communication to any witness attending by audio visual link who must—
(a)be reasonably satisfied that the document which the witness is to sign is the same document that the testator (or the substitute signatory on behalf of the testator) signed; and
(b)ensure that there is on the will a statement that the witness witnessed the will by audio visual link in accordance with the remote execution procedure; and
(c)sign the will as a witness with the testator clearly seeing the signature of the witness being made by audio visual link; and
(d)if the witness is the special witness, in addition to complying with paragraphs (a) to (c), the special witness must check the will for compliance with the remote execution procedure and ensure that there is a statement on the will setting out—
(i)that the will was signed and witnessed in accordance with the remote execution procedure; and
(ii)that the person is a special witness and what type of special witness the person is; and
(iii)whether an audio visual recording was made of the signing or witnessing of the will by the remote execution procedure.[11]
[11]Emphasis in original.
A special witness is newly defined in s 3(1) of the Wills Act as an Australian legal practitioner, a justice of the peace or a member of a prescribed class of person.[12] The definition of document in s 3(1) is amended to specify that a document may be in electronic form.
[12]No regulations have been made pursuant to s 50A of the Wills Act to prescribe any class of person of which members may be special witnesses other than Australian legal practitioners and justices of the peace.
Newly enacted s 8D, titled ‘Remote execution procedure does not limit other duties and obligations’, provides that:
(1)The use of the remote execution procedure applies in addition to any other duty or obligation under any Act (including any Commonwealth Act) or at common law applying to a person as a testator or witness to a will or other testamentary document.
(2)The use of the remote execution procedure does not limit any requirement imposed by this Act by which a person must not write or do something without first being satisfied of certain matters.
A number of other incidental provisions were incorporated into the Wills Act that are relevant to the remote execution procedure. These include:
(a) If a will is executed in accordance with the remote execution procedure, then the document that has been checked and signed by the special witness in accordance with s 8A(7) is the valid will: s 8B(1).
(b) The place of execution of a will is the place where the testator is located at the time the will is executed: s 8B(2).
(c) A document purported to be a will ‘other than the will referred to in’ s 8B(1) (ie the version signed by the special witness) will not be valid, however the informal will procedure may apply: s 8B(3).
(d) Counterpart documents do not constitute a valid will: s 8B(4).
(e) An audio-visual recording of the execution of a will by remote execution procedure may be made only if all of the parties to the procedure consent to the recording being made: s 8C(1).
The evidence
The plaintiff relied on the following affidavits, including any exhibits:
(a) affidavit of the plaintiff, as executor, sworn 2 September 2021 stating the matters required by r 2.04 of the Supreme Court (Administration and Probate) Rules 2014 (Vic) (‘the Probate Rules’);
(b) affidavits of Rachael Lee Hocking (‘Ms Hocking’) sworn 7 June 2021, 30 June 2021, 7 September 2021, 28 September 2021 and 4 October 2021; and
(c) affidavit of Dr Eric Choo (‘Dr Choo’) sworn 22 November 2021.
Ms Hocking is a legal practitioner employed by KHQ Lawyers (‘KHQ’). She is the special witness to the deceased’s will. The circumstances of the execution of the deceased’s will are the subject of her affidavits, which are considered below.
Dr Choo is a general practitioner at Devon Medical Clinic. The deceased was a patient of that clinic for over 50 years before his death. Dr Choo’s opinion was that the deceased had testamentary capacity as at the date of executing the will.
Ms Hocking’s evidence
Ms Hocking deposed that at 12:30pm on 7 June 2021, she and her colleague, Shona Kylie Bell (‘Ms Bell’), the first subscribing witness to the deceased’s will, attended on the deceased via Zoom video conferencing. Ms Hocking stated that she discussed the will with the deceased and he confirmed that it accurately reflected his testamentary intentions and that he intended it to stand as his last will. She said that the will was then executed and witnessed, by Ms Bell and herself as special witness, in accordance with the remote execution procedure.
Ms Hocking stated that at the time the deceased signed the will, she could clearly see the deceased by audio-visual link. Ms Hocking deposed that the deceased was seated in front of and operating his computer, with a second laptop set up next to him so that he could operate the electronic signature program used to sign the will, known as DocuSign. She said that the deceased held the laptop up to the camera on the computer he was operating so that she could see the DocuSign program, and deposed that she could clearly see the deceased operating the laptop to produce his signature on the will.
Ms Hocking deposed that once the deceased signed the will, she confirmed that ‘we all needed to stay online whilst we all signed the Will’. After Ms Hocking verbally confirmed that Ms Bell had been automatically emailed a DocuSign link, Ms Bell shared her screen with the other participants in the Zoom conference and confirmed that the deceased and Ms Hocking could see the will as well as each other. Ms Hocking deposed that at the time she could clearly see Ms Bell by audio-visual link seated in front of her computer. In particular, when Ms Bell operated her computer, she could see Ms Bell adopting her electronic signature and her electronic signature appearing on the will. Ms Hocking said that once Ms Bell signed the will, the DocuSign link was automatically emailed to her. She then shared her screen and confirmed that she, the deceased and Ms Bell could all see the will as well as each other. Ms Hocking stated that she operated her computer to produce her electronic signature on the will in the view of the deceased and Ms Bell.
Ms Hocking deposed that after the will was signed by her, the deceased and Ms Bell, she satisfied herself that it had been signed and witnessed in accordance with the remote execution procedure and proceeded to electronically insert her signature on the will by way of certification on the front page.
Ms Hocking also deposed that at approximately 12:58pm (presumably on 7 June 2021), she received an automatically generated email from DocuSign. The email is exhibited to one of Ms Hocking’s affidavits, and states ‘Your document has been completed’. The email appears to attach three PDF documents, copies of which were not exhibited: ‘WILL of Carl John Curtis.docx.pdf’, ‘Enduring Power of Attorney.docx.pdf’ and ‘Summary.pdf’.
Ms Hocking deposed that on 6 September 2021, she transferred the ‘original electronic will’ executed by the deceased and held by KHQ on its document management system to a USB without making any modification. The USB containing this document is exhibited to one of Ms Hocking’s affidavits.
Also exhibited to one of Ms Hocking’s affidavits is an audio-visual recording of the execution of the will on 7 June 2021 (‘the recording’). The recording is analysed in detail below.
Dr Choo’s evidence
Dr Choo is a qualified medical practitioner working as a general practitioner at Devon Medical Clinic in Doncaster, Victoria.
Dr Choo deposed that the deceased was a patient of the clinic for over 50 years up until his death. Dr Choo stated that when he last saw the deceased on 1 June 2021, there was no mental deterioration noted by him.
Dr Choo also stated that, having reviewed the deceased’s medical records, he believed that the deceased would have had full testamentary capacity at the date of executing the will.
Audio-visual recording
The remote execution procedure does not require that an audio-visual recording be made. Indeed, an audio-visual recording may only be made if all parties consent: s 8C(1). However, the making of an audio-visual recording may serve various beneficial purposes, including to corroborate affidavit evidence or to support an application for a grant of probate pursuant to s 9 of the Wills Act should a will be found not to have been validly executed in accordance with the remote execution procedure.
In the present case, the recording is in the form of an ‘mp4’ file, which lasts for 22 minutes and 7 seconds. The recording shows four people participating in a Zoom conference. The participants do not introduce themselves, but can be identified by their display names, as follows:
(a) Ms Hocking, identified by the display name ‘Rachael Hocking, KHQ Lawyers’.
(b) the deceased, identified by the display name ‘carlcurtis’.
(c) the plaintiff, identified by the display name ‘adamcurtis’.
(d) Ms Bell, identified by the display name ‘Shona Bell, KHQ Lawyers’.
There is no evidence as to which participant was the ‘host’ of the Zoom conference or which participant recorded the conference. It is not possible to see from the recording whether there are any other persons participating in the conference.
There are various video layouts that can be used for a Zoom conference, and each participant can select and change the layout shown on their screen. There are also various recording layouts. The recording is of the ‘active speaker’ view, meaning it only displays the video of the participant who is actively speaking at any given moment. The change between active speakers in the recording is sometimes delayed. It is not possible to tell from the recording which layout the other participants used to view the Zoom conference.
At various stages, Ms Hocking, Ms Bell and the plaintiff ‘share’ their screen with other conference participants using the relevant function on Zoom. The Court understands that various content can be shared, such as the entire desktop display or a specific application window. While a participant is sharing their screen, the recording displays an active speaker thumbnail overlay in the top right corner. Other than by contemporaneous audio, it is not possible to tell from the recording which participant’s screen is being shared.
It is apparent from the recording that the deceased and the plaintiff were in the same premises at the time of the Zoom conference, albeit that at times, as described below, the plaintiff accessed the Zoom conference from a different computer in a different room to the room in which the deceased was seated. It is also apparent that Ms Hocking and Ms Bell were in different locations to the deceased and the plaintiff, and to each other.
Preliminary steps
At the commencement of the recording, Ms Hocking asks whether everyone is happy for the meeting to be recorded. Ms Hocking is shown on the video. A voice, which appears to be that of Ms Bell, can be heard to say ‘yes’. Another voice can be heard to say ‘yes’. The video then shows the deceased and the plaintiff sitting next to each other. The deceased appears to nod.
Ms Hocking then explains that they will be signing the deceased’s will and an enduring power of attorney (‘the power of attorney’), which have been set up on a program called DocuSign.
The plaintiff says that he has set up DocuSign on a separate laptop so that the deceased can still see Ms Hocking on his normal computer screen. The plaintiff signals towards the right of the screen, but the laptop cannot be seen on the recording at this stage.
Ms Hocking then explains to the plaintiff that she and Ms Bell will speak to the deceased ‘on our own’, but that the plaintiff can return if the deceased needs assistance. The plaintiff says he will log into the Zoom conference in another room, and that Ms Hocking can ‘accept’ him when she is ready. The plaintiff then appears to leave the room in which the deceased is seated.
Ms Hocking again explains to the deceased that they are going to sign the will and a power of attorney. The deceased interjects, saying that he has not accepted a power of attorney, to which Ms Hocking explains that the document to be executed is an enduring power of attorney, not a medical power of attorney, which he can sign at a later stage. The deceased accepts this explanation.
Ms Hocking then asks the deceased whether he has looked at the will and the power of attorney which were sent to him on 1 June 2021, and whether he is comfortable with the documents. The deceased responds that he ‘would have’, but that the plaintiff has been ‘handling all that’. Ms Hocking proceeds to summarise the effect of the deceased’s will as appointing the plaintiff as sole executor and trustee of his estate, and leaving his entire estate to the plaintiff. The deceased appears not to hear this, and asks for confirmation of to whom the estate will be left, to which Ms Hocking repeats that it will be left to the plaintiff. The deceased responds ‘exactly’ and then ‘correct’ to this explanation. Ms Hocking then explains that the will provides that if the plaintiff predeceases the deceased, then the deceased’s estate will go equally to the plaintiff’s two children, Jake and Tyler, to which the deceased again says ‘correct’. Ms Hocking also explains the operation of the staged provisions which stagger any distribution to Jake and Tyler. The deceased once again says ‘correct’ and agrees that he is comfortable with this.
Ms Hocking then asks the deceased if he has any questions. The deceased asks whether he can provide an inter vivos gift to the plaintiff, to which Ms Hocking replies that he can, but that she cannot give him financial advice and that he should seek advice about any effect this may have on his pension. The deceased then says he does not have any questions about the will.
Ms Hocking then explains the effect of the power of attorney as appointing the plaintiff as the deceased’s sole financial power of attorney. The deceased again responds ‘correct’ and ‘all good’.
Ms Hocking then asks the deceased if he has access to the email which has been sent to him by DocuSign and whether he would like her to add the plaintiff into the Zoom conference to assist. The deceased says ‘yes’. The plaintiff then appears on screen from a different room. Ms Hocking explains to the plaintiff that he may be needed to give the deceased some assistance with logistics. Ms Hocking asks the deceased to share his screen, and the deceased indicates that he will need the plaintiff’s help, following which the plaintiff appears to leave the room he is in and return to the room where the deceased is seated.
While waiting for the plaintiff to join the deceased, Ms Hocking states that she had hoped that they could have come to see the deceased at home, but that it is unfortunately not possible with the COVID-19 restrictions in place at the time, and that it would be better to get the will signed in the meantime. The deceased responds, ‘yeah absolutely, it’s crucial for me’.
The plaintiff then holds up the laptop and turns the screen to face the camera of the computer from which the deceased is participating in the Zoom conference. The cover page of what appears to be the deceased’s will is visible on the screen. The plaintiff then places the laptop back down in front of the deceased and it can no longer be seen on the recording. The plaintiff asks if he should leave, and Ms Hocking says he can stay to help with logistics.
Execution of the will by the deceased
Ms Hocking proceeds to direct the deceased as follows:
MS HOCKING: So Carl, just making sure --- you are the one that’s clicking on the documents for me.
THE DECEASED: Yep.
MS HOCKING: So, you’ll click on a button called ‘Start’.
THE DECEASED: Where’s that? Ah yep.
MS HOCKING: It’s a yellow square that says ‘Start’ ---
THE DECEASED: I can see that.MS HOCKING: --- Yep, and it will take you to the first place that you need to sign.
THE DECEASED: Yep.
MS HOCKING: And you say ‘Click here’.
THE DECEASED: So I click on the sign, or the ---
MS HOCKING: Yes, yes.
THE DECEASED: Ah, OK.MS HOCKING: And it should bring up a little box that says, ‘Adopt and sign’, and it will pre-populate a signature for you.
THE DECEASED: Nothing yet.
THE PLAINTIFF: Maybe click on the left hand part of the box there on the computer?
During this conversation, the video flickers between Ms Hocking and the deceased and the plaintiff sitting next to each other. The deceased appears to be operating the laptop in front of him, but the laptop cannot be seen in the recording. As the plaintiff speaks, he points, presumably to the laptop, but neither his hand nor the laptop can be seen.
The conversation continues:
THE DECEASED: Yep.
THE PLAINTIFF: There, try that. There you go.
THE DECEASED: Oh OK. ‘Required sign here’?
MS HOCKING: Yes. So click on that.
THE DECEASED: That box? So I shift the cursor over and click that box?
MS HOCKING: Yes please.
THE DECEASED: Ah OK. Alright. I’m ready to sign now.MS HOCKING: Yep, so you don’t actually need to sign anything, the computer is gonna do it for you.
THE DECEASED: Oh great.
MS HOCKING: OK, so did it come up with a box that says, ‘Adopt and sign’?
THE DECEASED: Yes.MS HOCKING: Yep, so click on that. ‘Adopt and sign’. And that’s going to pre-populate a signature for you.
THE PLAINTIFF: You sign on the yellow box.
THE DECEASED: Ah I see, yep. ‘Adopt and sign’ down there.
MS HOCKING: That’s the one.
THE DECEASED: Yep.MS HOCKING: So you are adopting that as your signature, and then you can now just keep clicking through on the ‘Sign’ boxes and it should automatically add that signature for you. There’s quite a few signatures for you, so just keep clicking through.
THE DECEASED: It’s alright, it’s OK. Think that’s it now, got to the end of it.
MS HOCKING: So, when it comes up with a yellow box that says ‘Finish’?
THE DECEASED: Ah I see. Yep. Then --- what do we do next?
MS HOCKING: So did you click on the box that says ‘Finish’?
THE DECEASED: I did, and the next box is ‘Submit’.
MS HOCKING: Yes.
THE DECEASED: But there’s other bits in between, but we don’t touch that?MS HOCKING: No. Maybe turn it around and just show me what it’s ---
Again, during this part of the conversation, the video flickers between Ms Hocking and the deceased and the plaintiff. As Ms Hocking stops talking, she leans in towards the camera, as though she is looking at something small on the screen. As Ms Hocking is shown in the recording at this time, the recording does not show what she is looking at.
The conversation continues:
MS HOCKING: --- yeah, so click on ‘No thanks’ just next to the ‘Submit’ box.
THE DECEASED: Oops.
At this point, the video shows the deceased and the plaintiff. It appears that the deceased is in front of the laptop, however, the laptop is not visible on the recording. The plaintiff’s hands are seen reaching across the deceased, apparently towards the laptop, and the plaintiff says ‘I think he just did it’.
The recording then shows Ms Bell for the first time.
Ms Hocking then explains that, if the deceased receives a copy of the version he has just signed, he should delete it, as she will provide a copy of what she describes as the ‘original’ document once she has signed it.
Signing of the power of attorney by the plaintiff
Ms Bell then explains that the document will be sent to the plaintiff, before being sent to her and Ms Hocking. Ms Hocking invites the plaintiff to return to his computer in the other room, which he does. Ms Hocking explains that the plaintiff will receive an email from DocuSign. Ms Hocking asks the plaintiff to share his screen over Zoom, which he does.
As explained above, when the plaintiff shares his screen, the recording shows his screen with the active speaker thumbnail overlay. Open on the plaintiff’s screen is a browser, and open in the browser is what appears to be the cover page of the deceased’s will, displayed within the DocuSign platform. There is a yellow button labelled ‘Start’ at the top left-hand corner of the document. That button is pressed, and an enduring power of attorney appears. There is a yellow button above the plaintiff’s signature block labelled ‘Sign’. As that button is pressed, Ms Hocking says ‘that is your acceptance of your appointment under the enduring power of attorney’. A large white box appears, headed ‘Adopt your signature’. Within that white box, there is a preview of a cursive signature reading ‘Adam Curtis’ and a yellow button labelled ‘Adopt and sign’. The button is pressed, and the large white box closes and the document re-appears. The words ‘DocuSigned by’ followed by the cursive signature and an alphanumeric code appear above the signature block. A yellow box labelled ‘Finish’ at the end of the document is then pressed.
Ms Hocking then says, ‘[Ms Bell], that will go to you’, and the plaintiff stops sharing his screen. Ms Hocking says, ‘we just all need to stay online while we all sign, so we will just wait for [Ms Bell] to go through the same process’.
Signing of the will by the witnesses
Next, the recording shows a screen, presumably Ms Bell’s, being shared. The active speaker thumbnail overlay can be seen. Open on the screen is a browser, and open in the browser is what appears to be the cover page of the deceased’s will displayed within the DocuSign platform. A yellow button labelled ‘Start’ appears in the top left-hand corner of the document.
Ms Bell asks ‘can you see that?’, to which Ms Hocking replies ‘we can, yes’. Ms Bell’s image appears in the overlay. The deceased cannot be seen and there is no audible response from him to this question. The last time that the deceased was seen or heard on the recording was prior to the plaintiff signing the power of attorney.
The ‘Start’ button is pressed, and the view changes to the footer of the first page after the cover page. A yellow box labelled ‘Sign’ above a ‘Witness’ signature panel is pressed. A cursive signature reading ‘Shona Bell’ preceded by the words ‘DocuSigned by’ and followed by an alphanumeric code appear in place of the box. The same process occurs at the foot of the next two pages of the will, at the signature block at the end of the will and at the signature block of the power of attorney. Each box is quickly clicked, with the process from clicking ‘Start’ to clicking ‘Finish’ taking approximately 10 seconds. Throughout this process, a cursive signature reading ‘Carl Curtis’ preceded by the words ‘DocuSigned by’ and followed by an alphanumeric code can be seen at the bottom of each page and in the signature block at the end of the will. A yellow box labelled ‘Finish’ is then pressed. During this process, the recording shows Ms Bell’s image in the overlay and the deceased cannot be seen.
The screen share is stopped and Ms Bell’s image appears briefly. The screen then returns to Ms Hocking, who says that it is her turn. The deceased then appears briefly, and appears to be looking down. Ms Hocking subsequently reappears.
A screen, presumably Ms Hocking’s, is then shared. The active thumbnail overlay can be seen. Open on the screen is a browser, and open in the browser is what appears to be the cover page of the deceased’s will displayed within the DocuSign platform. The deceased appears in the overlay looking towards the camera. Ms Hocking then asks, ‘can everyone see that?’. As Ms Hocking speaks, Ms Bell appears in the overlay and says ‘yes’. Another voice says ‘yes’, but it is unclear whether the voice belongs to the deceased or the plaintiff.
While the cover page of the will remains on screen, Ms Hocking then says:
OK Carl, so importantly, I just want you to have a look at this will as well. So this is just me confirming, which I will do at the end, that all the requirements under the remote execution procedure have been complied with. That’s just for me to check that we’ve done everything we need to do to accord with the legislation to sign electronically.
The document moves to the first page of the will after the cover page. A yellow box labelled ‘Sign’ above a second ‘Witness’ signature panel is pressed. A large white box appears, headed ‘Adopt your signature’. Within that white box, there is a preview of a cursive signature reading ‘Rachael Hocking’ and a yellow button labelled ‘Adopt and sign’. This button is pressed, the large white box closes and the document re-appears. The words ‘DocuSigned by’ followed by the cursive signature and an alphanumeric code appear above the signature panel. To the left of the signature appear cursive signatures reading ‘Carl Curtis’ and ‘Shona Bell’, both of which are preceded by the words ‘DocuSigned by’ and followed by alphanumeric codes.
Ms Hocking then scrolls back up to the top of this page. The following conversation takes place:
MS HOCKING: So here’s the first page of your will. That’s your personal details, your address, your date of birth and where you were born.
THE DECEASED: Yep.
MS HOCKING: We are appointing [the plaintiff] as the executor and trustee of your estate. That’s just some terminology that we use throughout the course of the will.
THE DECEASED: Yep.
MS HOCKING: But this is the very important clause, which deals with your estate, and ultimately distributes everything to [the plaintiff] but if [the plaintiff] predeceases you, to your grandchildren Jake and Tyler equally, and that’s the increments that you told me that you wanted, so 25% once they turn 21, 25% once they turn 25, and the balance once they turn 30. Okay?
THE DECEASED: Okay.
During this conversation, the image in the overlay flickers between Ms Hocking and the deceased as each of them speaks.
Ms Hocking then clicks ‘Sign’ at the foot of the next two pages of the will, at the signature block at the end of the will and at the signature block of the power of attorney. The deceased appears in the overlay during this time, and he appears to be looking at the screen.
The will is then scrolled through as Ms Hocking says ‘I am just going to quickly check through’. Ms Hocking appears in the overlay at this point. A yellow box labelled ‘Sign’ on the cover page of the will is then pressed, and a cursive signature reading ‘Rachael Hocking’ appears in its place, below a statement that the will has been signed in accordance with the remote execution procedure and that the recording has been made, and above a statement that Ms Hocking is a ‘special witness’ as an Australian legal practitioner within the meaning set out in s 3 of the Wills Act. The yellow button labelled ‘Finish’ is then pressed.
Ms Hocking then says ‘we’re all done, that will come through to [Ms Bell] as a document and then I’ll be able to give you copies after that’.
Submissions
On 3 March 2022, the amici curiae provided written submissions to the Court. The plaintiff was also provided with an opportunity to file additional material. However, the plaintiff’s solicitors did not file any further material and indicated they wished to rely upon the submissions previously filed by them on 21 October 2021 and the affidavit evidence.
Plaintiff’s submissions
The plaintiff submitted that all elements of the remote execution procedure were carried out on 7 June 2021.
In particular, he submitted that the requirement of ‘clearly seeing’ the signatures of the testator and witnesses ‘being made by audio visual link’ in ss 8A(4)(a) and 8A(7)(c) of the Wills Act was satisfied by the use of the DocuSign system, which was designed to enable secure electronic signing of documents; the fact that the deceased and the two witnesses were able to see each other via audio-visual link; and each of the deceased and the two witnesses seeing their respective electronic signatures appear on the will.
The plaintiff further submitted that the words ‘clearly seeing [the] signature being made by audio visual link’, as required by ss 8A(4)(a) and 8A(7)(c), should be interpreted widely to include ‘seeing signatures appear on the will’ when the testator and the two witnesses use secure electronic software such as DocuSign by audio-visual link. In this regard, the plaintiff relied upon the principle that legislation with a beneficial or remedial purpose should be construed according to that purpose, giving the legislation a ‘fair, large and liberal interpretation rather than one which is literal or technical’.[13]
[13]Citing IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J), 39 (Gummow J).
The plaintiff also relied upon the recent Court of Appeal decision in Pell v R,[14] where it was held that a requirement for something to occur ‘in the presence of’ someone could be satisfied via an electronic process.
[14][2019] VSCA 186.
Submissions of the amici curiae
The amici curiae provided detailed written submissions concerning the requirements of the remote execution procedure, ultimately submitting that the deceased’s will was not executed in compliance with the Wills Act for the following four reasons:
(a) First, s 8A(5) requires that the testator sign the will with all witnesses ‘clearly seeing’ the signature ‘being made’. The deceased’s laptop, on which he signed the will, appears to have been out of frame at the time when he executed the will, with the consequence that it could not have been seen by the other participants in the Zoom conference.
(b) Secondly, s 8A(7) requires any witness to be ‘reasonably satisfied’ that the document they are signing is the ‘same document’ signed by the testator. There is no evidence to explain how the DocuSign software produces the ‘same document’ for each witness.
(c) Thirdly, s 8A(7)(c) requires that the testator must ‘clearly see’ the signature of each witness being made. There is no evidence that the deceased clearly saw the signatures of the two witnesses as they were being made.
(d) Fourthly, s 8B(1) requires that the document checked and signed by the special witness is the valid will. The evidence does not disclose whether the document for which a grant of probate is sought is the document that was checked and signed by Ms Hocking as special witness, and the Court cannot be satisfied that it is.
Consideration
Remote execution procedure
The newly enacted s 8A of the Wills Act provides a detailed procedure for the remote execution of a will. The requirements reflected in s 7(1) have been in place in Victoria since 1837, and there is no express statement that the remote execution procedure is intended to wholly displace s 7(1). While s 7(5) provides that a will ‘may be executed’ using the remote execution procedure, and that ‘that will is a valid will’, the effect of s 8D is that the requirements of s 7(1) continue to apply, save where they have been displaced by the remote execution procedure.
Thus, in summary, the following is required for a will to be valid and executed in accordance with the remote execution procedure:
(a) The will must:
(i) be in writing: s 7(1)(a).
(ii) be signed by the testator or by some other person, in the presence of, and at the direction of the testator: ss 7(1)(a), 8A(4). For the purposes of the remote execution procedure, the other person is referred to as the ‘substitute signatory’: s 8A(4)(b). The signature may be an electronic signature: s 7(6).
(iii) be signed by at least two witnesses: s 7(1)(d). One of these witnesses must be a special witness: s 8A(2). Again, the signatures may be electronic signatures: s 7(6).
(iv) have any required statements on it: ss 8A(7)(b), (7)(d).
(b) The testator or substitute signatory’s signature must be:
(i) made with the testator’s intention of executing a will: s 7(1)(b).
(ii) made or acknowledged by the testator in the presence of two or more witnesses present at the same time: s 7(1)(c). The witnesses may be present by audio-visual link: s 7(7).
(c) If the testator signs the will, the witnesses must clearly see that signature being made by audio-visual link or a combination of physical presence and audio-visual link: s 8A(4)(a). If the substitute signatory signs the will, the witnesses must clearly see and hear the direction of the testator to the substitute signatory and the witnesses and the testator must clearly see the substitute signatory’s signature being made on behalf of the testator by audio-visual link or a combination of physical presence and audio-visual link: s 8A(4)(b).
(d) The witnesses’ signatures must be made in the presence of the testator, but not necessarily in the presence of each other: s 7(1)(d). The testator may be present by audio-visual link: s 7(7).
(e) Particular witnesses must sign in the following order:
(i) any witness, other than the special witness, who is physically present with the testator must sign before any witness who is attending by audio-visual link and not physically present with the testator (a ‘remote witness’): s 8A(5).
(ii) once the testator (or substitute signatory) and any witness physically present with the testator (but not the special witness) has signed the will, the will is to be transmitted by electronic communication to any remote witness: s 8A(7).
(iii) the special witness, whether or not physically present with the testator, must sign last: s 8A(6).
(f) Any remote witness must:
(i) be reasonably satisfied that the document which they are to sign is the same document that the testator or substitute signatory signed: s 8A(7)(a). The phrase ‘are to sign’ indicates that the remote witness must be reasonably satisfied prior to signing the will.
(ii) ensure that there is a statement on the will that the witness witnessed the will by audio-visual link in accordance with the remote execution procedure: s 8A(7)(b).
(iii) sign the will: s 8A(7)(c).
(g) The testator must clearly see the signature of any remote witness being made by audio-visual link: s 8A(7)(c).
(h) If the special witness is a remote witness, the special witness must also:
(i) check the will for compliance with the remote execution procedure: s 8A(7)(d).
(ii) ensure that there is a statement on the will that the will was signed in accordance with the remote execution procedure, that the person is a special witness and what type of special witness the person is, and whether an audio-visual recording was made of the signing or witnessing of the will by the remote execution procedure: s 8A(7)(d).
(i) All of these formalities must be carried out within Victoria, on the same day: s 8A(3).
The amici curiae submitted that there is a possible inconsistency between s 8A(5), which provides that ‘any witness who is physically present with the testator’ must sign the will before it is electronically transmitted to any remote witness, and s 7(1)(d), which provides that only two of the witnesses need to attest and sign the will. However, s 8A(5) should not be interpreted as creating an additional obligation over and above s 7(1)(d) that all those who are physically present with the testator sign the will. Rather, s 8A(5) should be read as ‘any attesting witness’.
Subject to the issue of compliance with the remote execution procedure, the deceased’s will was executed in compliance with s 7(1): the document is in writing and was signed by the testator; the recording evidences that it was the intention of the deceased to execute a will; there were witnesses present at the time the will was executed; and two witnesses attested and signed the will in the presence of the testator.
However, as the amici curiae identified, a number of issues arise in relation to whether the deceased’s will was executed in accordance with the remote execution procedure. These issues are to be resolved by consideration of the evidence and the proper construction of the Wills Act using ordinary principles of statutory interpretation, which, in short, ‘require consideration of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose’.[15]
[15]See O’Brien Transport Services Pty Ltd v Williams [2022] VSCA 62, [46] (Beach and Kennedy JJA and O’Meara AJA), citing R v A2 (2019) 269 CLR 507, 520–522 [32]–[37] (Kiefel CJ and Keane J), 545 [124] (Bell and Gageler JJ).
Evidentiary burden
Section 6 of the Administration and Probate Act 1958 (Vic) provides:
The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property whether real or personal within Victoria.
In order for a will to be admitted to probate, the Court must be satisfied that it was validly executed in accordance with the requirements of the Wills Act. It is the proponent of a will who bears the onus of proving due execution.[16]
[16]Re Jones [2021] VSC 273 (‘Re Jones’) [7], [91] (McMillan J); Burnside v Mulgrew [2007] NSWSC 550 (‘Burnside’) [26] (Brereton J).
There is ordinarily a presumption of due execution of a will that on its face appears regular and bears the signature of a testator and two witnesses.[17] As Mayo J said in Re Gramp:
After the script had been received in evidence, and the signatures of the deceased and two witnesses shown to be their own, the presumption omnia praesumuntur rite esse acta[18] came into operation. The signatures, as such, were never disputed. The burden of proof (to show that the script was not duly executed) undoubtedly passed to the defendants so soon as the fact of the genuineness of the signatures became definite…[19]
[17]Re Jones (n 16) [7] (McMillan J); West v Smith [2018] WASC 12, [58] (Martin J).
[18]Shorthand for the proposition that, in the absence of evidence to the contrary, everything that has been done is presumed to have been done correctly.
[19][1952] SASR 12, 26–7 (Mayo J) (footnote added, citations omitted). See also Burnside (n 16) [20]–[25] (Brereton J).
Even if there are some unusual factors about a will, the presumption of due execution may still apply, albeit with less force.[20] However, where there is evidence contrary to such due execution, the presumption will not be applicable, as it will accordingly have been rebutted.[21]
[20]Public Trustee v Permanent Trustee Co Ltd; Estate of Rintoul [1999] NSWSC 722, [68] (Young J); Re Lucas [1966] VR 267, 270 (Adam J); Re Young [1969] NZLR 454, 458 (Tompkins J); Re Unsworth (1974) 8 SASR 312, 319 (Bray CJ).
[21]Ibid. See also Public Trustee v Nezmeskal [2018] WASC 394, [34] (Pritchard J), where it was stated that the presumption ‘is, of course, rebuttable by compelling evidence that the will was not duly executed, for example if the evidence revealed that the witnesses did not see the testator signing the will’, citing Re Groffman (deceased) [1969] 1 WLR 733, 739 (Sir Jocelyn Simon P).
Importantly, the requirement of a special witness is one of the safeguards built into the remote execution procedure. As the Minister explained in the second reading speech for the Bill which relevantly amended the Wills Act:
Significant end-of-life planning or loss of capacity documents, such as enduring powers of attorney and wills, hold particular risk for abuse. Therefore, additional safeguards are included in the Wills Act and the [Powers of Attorney Act 2014 (Vic)], including the requirement for a ‘special witness’. Special witnesses are defined to be a legal practitioner or justice of the peace. Legal practitioners and justices of the peace already hold the necessary professional duties to ascertain that a document is being freely executed and are therefore best placed to ensure witnessing by audio-visual link in these circumstances is not abused. The special witness is required to be the final witness, to check the will or the enduring power of attorney, and to ensure that the remote execution process has been complied with (and include a statement to that effect).[22]
[22]Victoria, Parliamentary Debates, Legislative Assembly, 18 February 2021, 445–6 (Melissa Horne).
Thus, at least in the absence of suspicious circumstances or other reasons to doubt that the remote execution procedure has been properly complied with, a statement from a special witness in accordance with s 8A(7)(d) provides a strong indication that a will has been regularly executed in accordance with the Wills Act.
Prima facie, there is no indication in the Wills Act that the presumption should not apply. On its face, the deceased’s will is regular. It contains what appears to be the electronic signature of the deceased and two witnesses. As required by s 8A(7)(b), there is a statement that Ms Bell witnessed the will by audio-visual link in accordance with the remote execution procedure. Further, as required by s 8A(7)(d), there is a statement of the special witness, Ms Hocking, acknowledging that the will has been signed and witnessed in accordance with the remote execution procedure and that an audio-visual recording was made of the signing and witnessing of the will by the remote execution procedure.
However, as discussed below, there is evidence before the Court contrary to the due execution of the deceased’s will, in the form of the recording. As a result, the plaintiff does not have the benefit of the presumption of due execution, and in order for the will to be admitted to probate, the plaintiff must satisfy the Court that the requirements set out under ss 7 and 8A of the Wills Act were complied with.
Notably, in other like applications for grants of an electronically signed will made after the plaintiff’s application where the Registrar of Probates has requested that an applicant file an affidavit of due execution in respect of an electronic will, the affidavit has revealed non-compliance each time, and the relevant wills were not probated as formally executed wills. It is standard practice of the Registrar of Probates to request an affidavit of due execution in any circumstance where the execution of a will deviates from the norm, such as where a will has been translated or read over or where a mark has been affixed on the will. While r 2.06 of the Probate Rules currently does not include the remote execution procedure as one of the prescribed circumstances in which an affidavit of due execution is required, it is likely that the rule will be amended in due course, given the importance of such evidence. In the meantime, prudent practice dictates that an applicant seeking a grant of an electronically signed will should be prepared to provide an affidavit of due execution.
Did the deceased sign the will with Ms Bell and Ms Hocking ‘clearly seeing’ his signature being made?
Section 8A(4) relevantly provides that in order for a will to be executed in accordance with the remote execution procedure:
The testator must …—
(a)sign the will with all witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link…
As the amici curiae submitted, there is uncertainty as to whether the deceased signed the will with Ms Hocking and Ms Bell ‘clearly seeing’ his signature ‘being made’.
The requirement that the witnesses clearly see the testator’s signature being made stands in contrast to the general requirement for a valid will in s 7(1)(d) that the testator and witness sign the will ‘in the presence of’ each other. As identified above, the requirements of s 7 still apply to a will executed in accordance with the remote execution procedure. However, as s 7(7) makes clear, where that procedure is adopted this requirement is satisfied if the testator is present by audio-visual link.
There are old authorities which suggest that ‘in the presence of’ does not require the testator and the witnesses to actually see each other sign the will.[23] However, the requirement in s 8A(4)(a) of ‘all witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link’ operates in addition to the requirement that the testator and witness sign the will ‘in the presence of’ each other, as imposed by s 7(1)(d). Accordingly, by including this requirement, the legislature intended to require more than the mere presence of the testator and the two witnesses by audio-visual link.
[23]See, eg, Shires v Glascock (1795) 2 Salk 688; Doe d. Wright v Manifold (1813) 1 M & S 294; Newton v Clarke (1839) 2 Curteis 320.
Section 8A(4)(a) contemplates that the action of the testator signing the will be visible to the witnesses over the audio-visual link and the witnesses actually observe the signature being made. The word ‘clearly’ is an adverb qualifying the word ‘seeing’. Its inclusion indicates that the legislature intended that a witness have an unobstructed view of the testator and the document they are signing.
Such a construction is reinforced by the second reading speech for the Bill which introduced the Justice Legislation Amendment Act, which made clear that the amendments made to the Wills Act by this Act were intended to protect against the ‘inappropriate use’ of the remote execution procedure, ‘including the risk of fraud or abuse of vulnerable Victorians’.
Whether the requirement of ‘all witnesses clearly seeing … [the testator’s] signature being made’ is satisfied will depend upon the particular circumstances of a given case and, in particular, the method by which the document is signed by the testator. For example, where the testator is signing a hard copy of a will by hand — which is then transmitted by electronic communication to any witnesses not physically present, such as via e-mail — the requirement will be easily satisfied where the audio-visual link is configured such that the witnesses have a clear view of the testator signing a document which has been identified as their will.
However, more difficult questions may arise where an electronic signature is employed, as provided for in s 7(6) of the Wills Act. The term ‘electronic signature’ is not defined in the Wills Act. In the second reading speech for the relevant Bill, the Minister said (albeit of amendments to the Electronic Transactions (Victoria) Act):
The amendments … provide for:
·clarification regarding the use of electronic signatures. The term ‘electronic signature’ is not defined in the Bill to preserve technology neutrality. An example of an electronic signature could include a person confirming their agreement by electronically selecting an option. Consent must be obtained by the recipient of the signed document for an electronic signature to be used. These provisions do no [sic] override more specific requirements for electronic signatures that may exist in other Principal Acts.[24]
[24]Victoria, Parliamentary Debates, Legislative Assembly, 18 February 2021, 445 (Melissa Horne).
The Justice Legislation Amendment Act did, however, introduce a definition of the term ‘electronic signature’ into s 3 of the Bail Act 1977 (Vic). That definition provides:
Electronic signature includes, but is not limited to—
(a)a person confirming their agreement by electronically selecting an option indicating affirmation; or
The recording shows that at the time they sign the document, each of Ms Bell and Ms Hocking are sharing their screens whilst positioned in front of their computers. If the deceased could see — and was in fact observing — these images as they appear on the recording, then the Court would be satisfied that the witnesses signed the will with the deceased ‘clearly seeing’ each of their signatures ‘being made’.
The deceased does not audibly confirm that he can see Ms Bell’s or Ms Hocking’s screen when they each sign the will, nor is he instructed to ensure that he observes them signing the will. However, the other participants do confirm that they can see the document when Ms Bell shares her screen. The recording does not show the deceased’s image at the time Ms Bell is signing the will.
In the absence of any evidence from either Ms Bell, Ms Hocking or the plaintiff of any observations they may have made of the deceased at the time Ms Bell was executing the will, the Court is not in a position to be satisfied that the deceased clearly saw Ms Bell’s signature being made.
In the recording, when Ms Hocking is signing the will, she talks to the deceased about its contents, confirming that it reflects his intentions. The deceased interacts with Ms Hocking and there is no indication that he cannot see the document as she signs it. The recording intermittently shows the deceased during this time, and he appears to be looking at his computer screen. While Ms Hocking’s evidence was that all of the requirements of s 8A were complied with, she did not specifically address the question of whether the deceased clearly saw her signing the will.
It is also unclear from the recording whether it is the plaintiff or the deceased who confirms that they can see Ms Hocking’s screen when it is shared, making it difficult to conclude that the deceased clearly saw Ms Hocking signing the will. While Ms Hocking’s hands operating her computer are not visible on the recording, her screen is shared, showing her cursor actions, and her image is displayed, evidently operating that computer. However, it is difficult to conclude that this alone satisfies the requirements of s 8A(7)(c). Without being able to see the person who is affixing their signature operating the mouse, it cannot be concluded that that person has been ‘clearly seen’ affixing their signature.
To ensure this requirement is satisfied, it would be prudent for witnesses to instruct a testator on the importance of observing the witnesses applying their signatures, and to seek audible confirmation that the testator can clearly see this. Given that the remote execution procedure is intended to afford protections for testators, it would be prudent to require each person to be confident that the testator/witness is the one operating the device that effects the signature. In circumstances where an audio-visual link affords only a limited view of the location that a testator is in, it is impossible to know whether any other person is present and exerting undue influence over the testator, or appearing off screen and operating the mouse without the witnesses knowing. Although this may be able to be overcome by conversing about what is occurring at each stage of the process, the requirement is that the testator/witnesses clearly see the signature being made. This means that even without conversing, each person must be satisfied as to what is occurring.
Which is the valid will?
Section 8B(1) provides that the document checked and signed by the special witness is the valid will. The amici curiae submitted that the evidence does not disclose whether the document for which a grant of probate is sought is the document that was checked and signed by the special witness, and the Court cannot be satisfied that it is.
The Probate Rules provide that an applicant for a grant of probate of a will is to submit in RedCrest-Probate for filing a copy of the original will or other document for which the grant is sought.[26] The original will or other document is to be filed with the office of the Registrar of Probates within 28 days after the application is submitted in RedCrest-Probate.[27] The original will must also be exhibited to the affidavit in support of an application.[28]
[26]Supreme Court (Administration and Probate) Rules 2014 (Vic) r 2.02(2)(a).
[27]Ibid r 2.02.1.
[28]Ibid r 2.04(2)(d)(i).
In accordance with those rules, a copy of the deceased’s will was filed through RedCrest-Probate on 2 September 2021. A copy of the will was also exhibited to the plaintiff’s affidavit dated 2 September 2021. This document contains electronic signatures of the deceased, Ms Bell and Ms Hocking in the same form as they appear on the recording.
Ms Hocking deposed that after she signed the document, she received an automatically generated email from DocuSign advising that the document was complete. Ms Hocking’s evidence was that the electronic file of the document she signed was controlled by KHQ, as subscribers to a DocuSign account which generated the document. A copy of the file was saved in KHQ’s electronic filing system. On 8 September 2021 at approximately 7:28pm, she electronically transferred the file entitled ‘WILL dated 07.08.21’ from the KHQ document management system to a USB. That USB is exhibited to one of her affidavits. If the document on the USB is the same document as the deceased’s will, then the requirement that the original will be filed in the office of the Registrar of Probates within 28 days has been satisfied.
The document on the USB is identical in content to that exhibited to the plaintiff’s affidavit. From Ms Hocking’s evidence, the Court is willing to infer that this document is identical in content to the document held on the DocuSign account controlled by KHQ.
As recognised above, the Wills Act contemplates that a document transmitted by electronic communication remains the same document. By saving the file contained in the DocuSign account controlled by KHQ in KHQ’s electronic filing system and electronically transferring the file from the KHQ document management system to a USB, Ms Hocking transmitted the document by electronic communication for the purposes of the Wills Act.
Given the nature of electronic documents, an interpretation of the Wills Act which requires the exact copy of the electronic document to be the original will (and thus the copy that is to be provided to the Registrar of Probates) would be unworkable. The nature of electronic documents is such that ‘copies’ are necessarily created when such documents are transmitted. It is in apparent recognition of this that the Wills Act contemplates that the transmission of a document by electronic communication does not result in the creation of a new document.
Thus, contrary to the submissions of the amici curiae, had the requirements of the remote execution procedure been complied with, the Court would accept that the USB exhibited to Ms Hocking’s affidavit and filed with the Court contains a copy of the will signed by Ms Hocking as the special witness, and thus a valid will under s 8B(1).
It has been suggested that in the case of electronically signed wills, such a position may raise issues with the operation of the presumption of intentional revocation of a will by destruction.[29] However, it is unnecessary for the Court to seek to address this matter in the circumstances of this case.
[29]See Christie Gardiner and Lee Aitken, ‘Rebutting the Presumption of Intentional Revocation of a Will by Destruction: An Examination of Electronically Signed and Remotely Witnessed Wills’ (2022) 51 Australian Bar Review 70.
Nonetheless, the Court notes for completeness that, given the potential complications that may arise from a valid will being in electronic form, it would be prudent for special witnesses employing the remote execution procedure to mark and sign a hard copy of the will which has been electronically transmitted to them, so that the original copy of the valid will can be identified easily.
Conclusion
The Court cannot be satisfied that the deceased’s will was executed in accordance with the remote execution procedure and, accordingly, the deceased’s will is not a valid will under s 7 of the Wills Act.
Informal wills
Although not a valid will in accordance with s 7 of the Wills Act, it is possible that the deceased’s will may be admitted to probate as an informal will.
In 1997, s 9 of the Wills Act was introduced to address the ‘inequitable’ result of a will being invalid because of a failure, however slight, to comply with formal requirements.[30] Section 9(1) provides that:
[30]See Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 435 (Jan Wade, Attorney General).
The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
Pursuant to s 9 of the Wills Act, there are three requirements for the admission of an informal will to probate:
(a) there must be a document;
(b) that document must express or record the testamentary intentions of a deceased person; and
(c) that document must have been intended by the deceased person to be their will.[31]
Each of these matters must be established on the balance of probabilities in accordance with s 140 of the Evidence Act 2008 (Vic).[32]
[31]See, eg, Sultanova v Bolgarow [2019] VSCA 245 (‘Sultanova’) [28] (Beach and Niall JJA and Kennedy AJA); Re White (n 25) [50] (McMillan J); Fast v Rockman [2013] VSC 18, [46] (Habersberger J).
[32]See, eg, Sultanova (n 31) [29] (Beach and Niall JJA and Kennedy AJA).
Where a document has not been validly executed but satisfies the requirements of s 9 of the Wills Act, it may in theory still be refused probate where a testator lacked testamentary capacity, did not know and approve of the document, or was affected by undue influence in making the document. This means that in considering whether an informal will satisfies s 9 of the Wills Act, these further issues are also relevant factors that must be considered.
In relation to the deceased’s will, the first and second requirements are clearly established by the document over which probate is sought. In relation to the third requirement, the recording demonstrates that the deceased intended the document to be his will. In particular, the recording shows that the audio-visual link was established for the purposes of executing a will for the deceased, that the deceased confirmed that the document accorded with his testamentary intentions, and that the deceased intended to execute that document as his will in accordance with the remote execution procedure, and indeed was of the belief that he had done so.
Further, on the evidence, the Court was satisfied that the deceased had testamentary capacity when he executed the will, that he knew and approved of the will and that he was not affected by any undue influence in making it.
Although the Court was not satisfied that the will was executed in compliance with the remote execution procedure, it was satisfied that the document should be admitted to probate, pursuant to s 9 of the Wills Act. Accordingly, on 9 December 2021 probate of the deceased’s will was granted to the plaintiff.
Other issues
As this proceeding demonstrates, careful attention needs to be paid to the requirements of the remote execution procedure when seeking to execute a will by audio-visual link. Notwithstanding the outcome of this proceeding, practitioners should not assume that wills that do not comply with the remote execution procedure will necessarily be admitted as informal wills. The determination of whether the Court is satisfied that the requirements under s 9 of the Wills Act have been met will depend on the facts and circumstances of each particular proceeding.
Further, for those practitioners who have sought to execute wills under the remote execution procedure, it may be prudent to consider whether that procedure was complied with and, if not, to re-execute the relevant wills, either in the usual manner now there are no public health directions limiting movement or through proper compliance with the remote execution procedure.
Postscript
The Court was assisted greatly by comprehensive written submissions filed by the amici curiae. In providing their assistance on a pro bono basis, they have upheld the highest tradition of the Victorian Bar. The Court records its gratitude and appreciation to them for undertaking this task, which will benefit all practitioners in this area of practice.
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