Section 8A · Wills Act 1997 (Vic)
The requirements are demanding, and they can be met.
Since 2021, section 8A of the Wills Act 1997 (Vic) has allowed a will to be signed and witnessed by audio-visual link. The Act sets out how, and Re Curtis shows what doing it properly looks like. Here is what that asks of the practitioner running the execution.
Not an e-signature platform
A different question, asked by a different reader
The law has allowed remote witnessing since 2021, and very few wills have used it.
The remote execution procedure began as a pandemic measure and was made permanent in 2021. Every participant, including both witnesses, can take part by audio-visual link, provided each step is followed.
For many practitioners the safer course has been not to offer it. Declining an optional method without a settled protocol is the conservative position, and a defensible one. It does leave the procedure largely unused by the people it was written for.
The requirements
Every requirement falls at one of three moments in the session.
Before anyone signs
- Every participant takes part by audio-visual link.
- Every step happens on the same day, and within Victoria.
- The required statements are already on the face of the will.
- If the session is recorded, every participant consents.
Same day and within Victoria: s 8A(3)
Statements on the will: s 8A(7)(b), (d) · Re Curtis [74]
Recording and consent: s 8C(1) · not mandatory: Re Curtis [36]
While the will is signed
- The witnesses clearly see the will-maker sign, which the Court read as seeing the person and the signature appearing.
- The will-maker sees each witness sign in the same way.
- Each witness is reasonably satisfied it is the document the will-maker signed.
- The special witness checks the will and signs last.
Witnesses see the will-maker sign: s 8A(4)(a) · at direction: s 8A(4)(b)
Will-maker sees each witness sign: s 8A(7)(c)
Same document: s 8A(7)(a) · Re Curtis [134]
Special witness and the valid will: s 8B(1)–(2) · Re Curtis [130]–[131]
Clearly seeing: Re Curtis [116]
Afterwards
- At probate, a witness, preferably the special witness, swears an affidavit of due execution.
- The Court’s template asks for what they personally saw, element by element.
The leading case
The leading case shows how easily a careful session can still fall short.
In Re Curtis (2022) 68 VR 40 the special witness reviewed each page, discussed the will with the will-maker, and recorded the session. The Court still found the procedure had not been followed. The will was admitted as an informal will instead, and it was the recording that let the Court find the will-maker intended it.
What the witnesses saw of the will-maker
The person, but not the signature appearing.
What the will-maker saw of the witnesses
The signature, but not the person making it.
The Court read the Act as requiring both, at the same moment.
A session can fall short in three ways that nobody notices at the time.
The camera has to show the person signing and the signature appearing, at the same moment.
The person who must watch has to be watching, and the Court suggested they confirm it out loud.
What happened has to be shown afterwards. Where the affidavit and the recording differed, the recording governed.
None of these is a failure of care. Each can happen in a session that feels, to everyone in it, as if it went well.
Non-compliance: [83], [108]–[110], [136], [148]
Framing: [52], [111], [148] · Attention: [65]–[66], [144]–[149] · Proof: [39], [108]–[110]
Admission as an informal will, and the role of the recording: [163]–[165]
The affidavit
The affidavit has to say what the witness saw, not that the procedure was followed.
In Re Curtis, a general statement that the procedure had been followed was not enough. The Court’s template for remote executions now asks for the detail directly.
- Where each participant was
- How the witness could see the will-maker sign
- How the will-maker could see each witness sign
- Why the witness was satisfied it was the same document
Those answers are easiest to give accurately, years later, from a record made at the time.
A complete record has value beyond showing that the procedure was followed, and that value is realised at precisely the moment compliance is in doubt.
The Court’s templateThe full analysis is in our working paper.
Each requirement, what Re Curtis says it means, what any compliant process would have to do, and the questions still open. Written for practitioners, and free to read and use.