Wills Act 1997 and Electronic Transactions (Victoria) Act 2020

extracts below

Wills Act 1997

Definitions

3 “document” means any paper or material on which there is writing and if the remote execution procedure is used, includes a document in electronic form;

7(4) of the Wills Act 1997

(5) For the purposes of this section, a will may be executed by using the remote execution procedure and that will is a valid will.

(6) For the purposes of this section, a signature may be an electronic signature if the remote execution procedure is used.

(7) For the purposes of this section "in the presence of" includes being present by audio visual link in accordance with the remote execution procedure.

8A Remote execution procedure

(1) A will may be executed under this Act in accordance with the remote execution procedure set out in this section.
Note
See section 3(2) regarding codicils and other testamentary writing.

(2) One of the witnesses must be a special witness and, if more than one witness qualifies as a special witness, only one of the special witnesses is to be the special witness.

(3) All elements of the remote execution procedure must be carried out on the same day and within Victoria.

(4) The testator must either—

• (a) sign the will with all witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link; or
• (b) direct another person (the substitute signatory) to sign the will with all witnesses clearly seeing and hearing the direction of the testator to the substitute signatory and all witnesses and the testator seeing the substitute signatory's signature being made on behalf of the testator by audio visual link or a combination of physical presence and audio visual link.

(5) Subject to subsection (6), any witness who is physically present with the testator then signs the will in accordance with the requirements for witnesses under this Act.

(6) The special witness must sign the will as the special witness last, whether the special witness is physically present with the testator or not.

(7) The will is then transmitted by electronic communication to any witness attending by audio visual link who must—

• (a) be reasonably satisfied that the document which the witness is to sign is the same document that the testator (or the substitute signatory on behalf of the testator) signed; and
• (b) ensure that there is on the will a statement that the witness witnessed the will by audio visual link in accordance with the remote execution procedure; and
• (c) sign the will as a witness with the testator clearly seeing the signature of the witness being made by audio visual link; and
• (d) if the witness is the special witness, in addition to complying with paragraphs (a) to (c), the special witness must check the will for compliance with the remote execution procedure and ensure that there is a statement on the will setting out—
• (i) that the will was signed and witnessed in accordance with the remote execution procedure; and
• (ii) that the person is a special witness and what type of special witness the person is; and
• (iii) whether an audio visual recording was made of the signing or witnessing of the will by the remote execution procedure.

8B Which document is the will?

(1) If a will is executed in accordance with the remote execution procedure, the document which has been checked and signed by the special witness in accordance with section 8A(7) is the valid will.

(2) The place of execution of a will executed in accordance with the remote execution procedure is the place where the testator is located at the time the will is executed.

(3) A document purporting to be a will other than the will referred to in subsection (1) cannot be used unless Division 3 of Part 2 or Part 3 applies to it.

(4) Subject to subsection (3), counterpart documents do not constitute a valid will.

8C Recording of remote execution procedure

(1) An audio visual recording of the execution of a will by remote execution procedure may be made only if all of the parties to the procedure consent to a recording being made.

(2) The making of a recording or the failure to make a recording referred to in subsection (1) does not affect the validity of the will executed by the remote execution procedure or the use of that procedure.

8D Remote execution procedure does not limit other duties and obligations

(1) The use of the remote execution procedure applies in addition to any other duty or obligation under any Act (including any Commonwealth Act) or at common law applying to a person as a testator or witness to a will or other testamentary document.

(2) The use of the remote execution procedure does not limit any requirement imposed by this Act by which a person must not write or do something without first being satisfied of certain matters.

Electronic Transactions Act Vic

s11 Retention of information and documents

(1) If, by or under a law of this jurisdiction, a person is required to record information in writing, that requirement is taken to have been met if the person records the information in electronic form, where—

• (a) at the time of the recording of the information, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
• (b) if the regulations require that the information be recorded on a particular kind of data storage device, that requirement has been met.

(2) If, by or under a law of this jurisdiction, a person is required to retain, for a particular period, a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person retains, or causes another person to retain, an electronic form of the document throughout that period, where—

• (a) having regard to all the relevant circumstances at the time of the generation of the electronic form of the document, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and
• (b) at the time of the generation of the electronic form of the document, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and
• (c) if the regulations require that the electronic form of the document be retained on a particular kind of data storage device, that requirement has been met throughout that period.

(3) For the purposes of subsection (2), the integrity of information contained in a document is maintained if, and only if, the information has remained complete and unaltered, apart from

• (a) the addition of any endorsement; or
• (b) any immaterial change—

which arises in the normal course of communication, storage or display.

(4) If, by or under a law of this jurisdiction, a person (the first person) is required to retain, for a particular period, information that was the subject of an electronic communication, that requirement is taken to have been met if the first person retains, or causes another person to retain, in electronic form, the information throughout that period, where—

• (a) at the time of commencement of the retention of the information, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
• (b) having regard to all the relevant circumstances at the time of commencement of the retention of the information, the method of retaining the information in electronic form provided a reliable means of assuring the maintenance of the integrity of the information contained in the electronic communication; and
• (c) throughout that period, the first person also retains, or causes the other person to retain, in electronic form, such additional information obtained by the first person as is sufficient to enable the identification of the following—
• (i) the origin of the electronic communication;
• (ii) the destination of the electronic communication;
• (iii) the time when the electronic communication was sent;
• (iv) the time when the electronic communication was received; and
(d) at the time of commencement of the retention of the additional information covered by paragraph (c), it was reasonable to expect that the additional information would be readily accessible so as to be useable for subsequent reference; and
• (e) if the regulations require that the information be retained on a particular kind of data storage device, that requirement has been met throughout that period.

(5) For the purposes of subsection (4), the integrity of information that was the subject of an electronic communication is maintained if, and only if, the information has remained complete and unaltered, apart from—

• (a) the addition of any endorsement; or
• (b) any immaterial change— which arises in the normal course of communication, storage or display.