Courts are ruling that wills signed electronically and witnessed in video conferences are “informal” because all witnesses could not “clearly see” the will makers’ signature being done.
An informal will is considered by courts to be invalid, leading to potentially lengthy and expensive delays for beneficiaries attempting to claim their inheritance and long-drawn redrafting of wills for living will makers, or testators, who need to have their wills freshly signed and witnessed. Wills signed electronically during COVID-19 are increasingly being contested in the courts or reviewed by the will makers’ solicitors amid concern they do not stand up.
Anna Hacker, client director of Pitcher Partners Advisory, says: “Informal wills cause stress to the executors and beneficiaries. It is possible to convince a court to approve an informal will, but it can take time and expense for a process that should be straightforward. It’s best to get it right the first time.”
Rachael Hocking, special counsel with KHQ Lawyers and who specialises in wills and estates, adds: “There have only been a handful of cases so far. But there are likely to be more because it was the only way you could sign documents during the pandemic.”
Some legal firms are encouraging their clients to re-sign their wills to avoid potential
Court challenges
The Supreme Court of Victoria recently highlighted the problem in a case involving the will of Carl Curtis who died on June 21 last year, aged 76, leaving the estate to his son, Adam. Hocking was the solicitor advising the Curtis family.
Carl, who was terminally ill, completed his will electronically during COVID-19 when most people were barred from moving beyond five kilometres of their homes. Executing a will was not a lawful reason to leave or enter another person’s residence.
His son’s application for probate was referred to the court and the will was ruled invalid because it had not complied with the “remote execution procedure”, which involves using electronic signatures witnessed through an audio-visual link.
Carl had signed his will electronically using a program called DocuSign while on a remote video-conference call with his solicitors, who were unable to see the full screen.
His son argued that the legal requirements were satisfied because the deceased and two witnesses were able to see each other via the audio-visual link and could all view their respective electronic signatures appearing on the will.
A doctor gave evidence that Carl was capable at the date of executing his will.
But Justice Kate McMillan ruled that it must be signed by the testator “with all witnesses clearly seeing that signature being made”.
Justice McMillan suggested that the issue could be resolved by adjusting the angle of the camera to allow the “witnesses to see the will maker, their actions and the document”.
In an earlier Queensland case, a will made by Stan Sheehan, who died in December 2020 aged 70, was ruled invalid because he had failed to electronically sign every page and an accompanying schedule.
Sheehan signed the will from his hospital bed witnessed by an audio-visual link.
The use of electronically signed wills surged during COVID-19 because of self-isolation. Fearful of contracting the disease from clients, particularly older ones in nursing homes, lawyers encouraged them to witness the testator on Skype or other digital media.
“Often the risk was actually vulnerable clients being worried lawyers would infect them rather than vice versa,” says Hacker. “Elderly clients are still nervous actually, and it’s still quite common that they will take extra precautions we don’t see with other younger clients.”
What’s required
To be valid, wills must be completed according to strict legal requirements.
This includes them having to be in writing and signed by the will maker, or some other person in their presence and at their direction. There should also be two or more witnesses present simultaneously.
Hocking says those using audio-visual equipment must be at the keyboard and be clearly seen signing the document, with the electronic signature appearing on the screen. The full length of the person signing must also be visible.
The potential legal problems arising from the issue are being compounded by different legal requirements in various states and territories. Lawyers expect challenges in other jurisdictions.
An informal will is intended to consist of the deceased’s final wishes but it does not comply with the legal requirements and can therefore be contested.
The executor, or a person with interest in the estate, has to apply to the court for the will to be admitted to probate, which is the process to confirm that it is valid and that the assets can be distributed.
It involves producing the will and proving to the court that it records the deceased’s intentions.
“The court will hear evidence of witnesses, such as lawyers,” says Hacker.
“But it can sometimes be difficult to establish the testators’ capacity, particularly if they had not seen a doctor before their death,” she says.
For more information get in touch with our Estate Planning team by calling 07 5539 9688 or email info@mba-lawyers.com.au