Case Insight: Re Curtis [2022] VSC 621 – Remote Will Execution Under Scrutiny

Ever considered whether you validly executed that contract that you signed last week or last year? Well, the Victorian Supreme Court’s decision in Re Curtis [2022] VSC 621 offers a critical lesson for legal practitioners and clients alike on the risks of improperly executed electronic documents and Wills in particular.

Background

In June 2021, during COVID-19 lockdowns, Mr Adam Carl Curtis executed his Will using DocuSign while participating in a Zoom video call with two witnesses. This process was intended to comply with the newly introduced “remote execution procedure” under the section 8A of the Wills Act 1997 (Vic), which allowed for wills to be signed and witnessed via audiovisual link. Section 8A(4) states that the testator must … “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”

The session was recorded, but the Zoom call was conducted in “active speaker” mode—meaning only the person speaking was visible at any time. As a result, neither witness could clearly see Mr Curtis physically applying his signature to the Will, nor could he see them do the same.

The Court’s Findings

Justice McMillan ruled that the Will was not validly executed under the remote execution procedure. The key failure was that the witnesses could not “clearly see” the testator’s hand applying the signature, as required by section 8A. The Court emphasised that merely seeing a face or a cursor on screen is insufficient; the act of signing must be directly observable.

However, the Court did admit the Will to probate as an informal will under section 9 of the Wills Act, recognising the testator’s clear intention despite the procedural flaw.

Key Takeaways

Remote witnessing must strictly comply with legislative requirements.

Witnesses must clearly observe the act of signing—not just the outcome. This means a witness must see the hand which signs the document and be satisfied the document being signed is the same document that is produced with the signature. In today’s digital age, electronic signings conducted to save a signatory time in travel, may require 2 devices to enable a document to be properly signed. Not everyone is tech-savvy enough to navigate this. In the writer’s opinion, its time to get back to physical meetings and wet ink signatures.

At Maclarens Lawyers, we ensure that your contracts and estate planning documents are executed correctly—whether in person or remotely. We stay ahead of legal developments to protect your intentions and your legacy.

Need help with a will or remote execution? Contact us for expert guidance and peace of mind.