The Succession Act 2023 (SA) (‘Succession Act’) does not provide for electronic signatures to execute a will

Wills are not exempt from the application of the Electronic Communications Act 2000 (SA) (‘EC Act’) under the Electronic Communications Regulations 2017 (SA) (‘EC Regulations’).¹ Therefore, provided the requirements under s 9 of the EC Act are met, an electronic signature can be used to execute a will under s 8 of the Succession Act subject to complying with the Act.

Conclusion

A will can be electronically signed under s 9 of the EC Act 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 SA 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.² Their analysis indicates the law in SA allows for the electronic signing and execution of wills, as the exclusions under regulation 6 of the EC Regulations do not apply to wills.³

Legislative extracts

Succession Act (SA)

s 8 Requirements as to writing and execution of will

Subject to this Act, no will is valid unless it is in writing and executed in the following manner:

• (a) it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
• (b) it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
• (c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• (d) the witnesses must attest and sign the will (but no form of attestation is necessary);

Electronic Communications Act 2000 (SA)

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).

¹ Electronic Communications Regulations 2017 (SA) reg 6(1).

² 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.

³ Electronic Communications Regulations 2017 (SA) reg 6(1).