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The Succession Act 1981 (Qld) (‘Succession Act’) does not provide for electronic signatures to execute a will.

Although the ET Act excludes application to any of the transactions listed in Schedule 1, this list of exemptions mostly relates to financial transactions and is not applicable to wills.1

Accordingly, where an electronic signature is used, the ET Act provides the requirements will be met for an electronic signature provided the provisions under s 14 are satisfied.2

Conclusion

A will can be electronically signed under s 14 of the ET Act provided:

  • The method used identifies the person and indicates their approval of information
  • The method used is reliable and appropriate for the purpose of which the information is communicated
  • The person whom the signature is provided consents to the requirement being met using an electronic signature

Relevant papers on the Qld position

The Department of Justice and Attorney-General website provides that with the expiration of the temporary COVID-19 regulations, wills must be executed in “the usual way” and witnessed in person.3

However, 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.4 Their analysis of the law in Queensland indicates the execution of wills is not excluded from the application of the ET Act under Schedule 1 5 allowing for the electronic execution of wills.

Legislative extracts

Succession Act 1981 (Qld)

10 How a will must be executed

  • (2) A will must be—
    • (a) in writing; and
    • (b) signed by—
      • (i) the testator; or
      • (ii) someone else, in the presence of and at the direction of the testator.
  • (3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.
  • (4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.
  • (5) However, none of the witnesses need to know that the document attested and signed is a will.
  • (6) The signatures need not be at the foot of the will.
  • (7) The signature of the testator must be made with the intention of executing the will.
  • (8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.
  • (9) A will need not have an attestation clause.
  • (10) A person who can not see and attest that a testator has signed a document may not act as a witness to a will.

Electronic Transactions Act 2001 (Qld)

14 Requirement for a signature

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

  • (a) a method is used to identify the person and to indicate the person’s intention in relation to the information communicated; and
  • (b) the method used was either—
    • (i) as reliable as appropriate for the purposes for which the electronic communication was generated or communicated, having regard to 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 the requirement being met by using the method mentioned in paragraph (a).


1 Electronic Transactions Act 2001 (Qld) sch 1 (‘ET Act’) ; 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) 13 (‘Law Council of Australia’).

2 ET Act ss 14(n 1) ss (1)(a) – (c).

3 Department of Justice and Attorney-General (Qld), ‘Using technology to make documents during COVID-19’ (Last updated 14 March 2023) .

4 Law Council of Australia (n 1).

5 Ibid.