The Wills Act 1968 (ACT) does not provide for an electronic signature to execute a will.

Electronic signatures are permitted under s 9 of the Electronic Transactions Act 2001 (ACT) (‘ET Act’).

Conclusion

As wills are not exempt from the application of s 9 of the ET Act they can be electronically signed provided:

• The method used can identify the person and indicates their intention to execute a will
• The method used is reliable and appropriate for the execution of a will
• The persons to whom the signature is required consents to the signature requirements being met by use of an electronic signature

Relevant papers on the ACT position

The submission by the Law Council of Australia provides a “high-level comparative analysis of the jurisdictional exemptions” of Electronic Transactions Acts between the states.¹ Their analysis of the law in the ACT indicates wills are not exempt from the application of the ET Act.

Legislative extracts

Wills Act 1968 (ACT)

9 Will to be in writing and signed before 2 witnesses

(1) Subject to this Act, a will is not valid unless—

• (a) it is in writing; and
• (b) it is signed at the foot or end by the testator, or by another person in the presence of and by the direction of the testator; and
• (c) the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and
• (d) 2 or more of those witnesses each attest that signing of the will or that acknowledgment of the signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses.

(2) Subsection (1) shall not be taken to require any form of attestation on a will.

10 When signature to will valid

(1) A will, so far only as regards the position of the signature of the testator on the will, is not invalid if the signature is so placed at, after, following, under, beside or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by that signature to the writing signed as his or her will.

Electronic Transactions Act 2001 (ACT)

9 Signatures

(1) If, under a territory law, a person’s signature is required, that requirement is taken to have been met for an electronic communication if—

• (a) a method is used to identify the person and to show the person’s intention in relation to the information communicated; and
• (b) the method was either—
  • (i) as reliable as was appropriate for the purpose for which the electronic communication was generated or communicated, in the circumstances, including any relevant agreement; or
  • (ii) proven in fact to have fulfilled the functions mentioned in paragraph (a), by itself or together with further evidence; and
• (c) the person to whom the signature is required to be given consents to that requirement being met using the method mentioned in paragraph (a).

¹ Business Law Section of the Law Council of Australia, Submission to Attorney-General’s Department, Attorney-General’s Department consultation on the Electronic Transactions Act (27 March 2023)