The Succession Act 2006 (NSW) (‘Succession Act’) does not provide for electronic signatures to execute a will.
The Electronic Transactions Act 2000 (NSW) (‘ET Act’) however expressly allows remote witnessing of wills under Part 2B by amendment under the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW).
The ET Act allows for the remote witnessing of wills, but does not alter the current formal signing requirements under the Succession Act, requiring all witnesses to be “present” with the willmaker.
Conclusion
A remote electronic will being remotely created can occur with a special witness (lawyer) certifying under the ET Act. Some key points
- all witnesses would need to be with the willmaker at the same time in the remote location and appear in a video session, so the lawyer sees them
- a certifying statement would need to be made on the will created electronically complying with the ET Act
Given these constraints it may really only be a practical convenience for the lawyer who can be remote and the witnesses being with the willmaker, as they must be physically with the willmaker.
Practically too the parties could make an ewill instead of paper will if they were all present but query, why not just use a normal paper will ?
Victoria expressly allows all parties to be all separately remote but they must “see” the will maker signing in the video conference, so that means using multiple devices at the same time to ensure the camera video will show the typing by the willmaker on say a keypad or finger to screen signing on a touch screen or iPad.
Relevant paper on the NSW position 2021
In a detailed guidance paper, the Law Society of NSW explores the implications of electronic witnessing under Part 2B of the ET Act. In relation to the use of electronic signatures to execute a will, they provide that although Part 2B of the ET Act applies to wills under s 14F(a), this does not change the current signature requirements namely to execute a valid will under the Succession Act.
Legislative extracts
Succession Act 2006 (NSW)
Requirements of will execution
6 (1) A will is not valid unless:
- (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
- (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
- (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
Electronic Transaction Act 2000 (NSW)
9 Signatures
(1) If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if—
- (a) a method is used to identify the person and to indicate the person’s intention in respect of the information communicated, and
- (b) the method used was either—
- (i) as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement, or
- (ii) proven in fact to have fulfilled the functions described 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 by way of the use of the method mentioned in paragraph (a).
(2) This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring--
- (a) an electronic communication to contain an electronic signature (however described), or
- (b) an electronic communication to contain a unique identification in an electronic form, or
- (c) a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator's intention in respect of the information communicated.
Part 2B Remote witnessing
14F Definitions
In this Part—
audio visual link means technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.
document includes the following—
- (a) a will,
- (b) a power of attorney or an enduring power of attorney,
- (c) a deed or agreement,
- (d) an enduring guardianship appointment,
- (e) an affidavit, including an annexure or exhibit to the affidavit,
- (f) a statutory declaration
14G Witnessing and attestation of documents by audio visual link
- (1) Despite any other Act or law—
- (a) if the signature of a document is required under an Act or another law to be witnessed, the signature may be witnessed by audio visual link, and
- (b) arrangements in relation to witnessing signatures and the attestation of documents may be performed by audio visual link.
- (2) A person witnessing the signing of a document by audio visual link (the witness) must—
- (a) observe the person signing the document (the signatory) sign the document in real time, and
- (b) attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, and
- (c) be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and
- (d) endorse the document, or the copy of the document, with a statement—
- (i) specifying the method used to witness the signature of the signatory, and
- (ii) that the document was witnessed in accordance with this section.