Over time the practice of writing a Will on parchment gradually shifted to the use of ordinary A4 paper.
The next significant development occurred during the COVID-19 crisis when the Victorian government legislated temporary changes to allow for the electronic signing and remote witnessing of Wills, Codicils and other testamentary instruments.1
On 16 March 2021 the state government passed legislation to establish a permanent regime for the electronic signing and witnessing of documents under the Wills Act 1997 (Vic) (the Act).2
Remote execution procedure
The key feature of this regime is the establishment of the ‘remote execution procedure’ contained within the new section 8A of the Act.
Notable aspects of this procedure include:
- The requirement for one of the witnesses to be a ‘special witness’. A special witness has additional responsibilities in order to protect vulnerable Victorians from abuse and to ensure that the procedure has been properly followed. A special witness is defined as:
- an Australian legal practitioner; or
- an appropriately recognised justice of the peace; or
- a person who is a member of a prescribed class of persons.3
- The witnesses can watch the Will being signed in person or by audio visual link;
- All elements of the remote execution procedure must be carried out on the same day within Victoria;
- The place of execution of a Will is the place where the Will-maker is located at the time the Will is executed under the remote execution procedure;
- An audio visual recording of the execution of a Will under the remote execution procedure may only be made with the consent of all the parties; and
- The remote execution procedure (including electronic signatures) cannot be used to execute an ‘international Will’ under Division 7 of Part 2 of the Act.
The procedure can be used for the revocation or alteration of a Will, as well as the execution or re-execution of a Codicil.
The temporary electronic signature measures were introduced for the purpose of maintaining physical distancing as a result of the COVID-19 crisis.
However, the recent electronic execution legislation seeks to bring the document execution requirements under the Act in line with our increasingly digital society. The new regime should also reduce delays associated with the physical signing of documents.
This article was written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Adam Den, Law Graduate.
1. COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic); COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
2. Justice Legislation Amendment (System Enhancements and Other Matters) Bill 2021 (Vic).
3. Wills Act 1997 (Vic) s3(1).