On 12 May 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) came into force in Victoria. The Regulations allowed for the electronic signature and remote witnessing of various types of documents, including Wills under the Wills Act 1997 (the Act).
Witnesses could observe a testator sign a Will electronically or on hard copy over an audio-visual link. The testator would then transmit a copy of the Will to the first witness to sign electronically or on hard copy, after which the first witness transmits a copy to the next witness who repeats these steps. Finally, a copy of the signed Will is returned to the testator.
Importantly the testator and each of the witnesses must sign and date a final certification that the entire document is a true copy of the will which has been executed, in conformity with r 41(5)(f).
“I, [name] attest that this document was signed in counterpart and witnessed by me by audio-visual link following the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”
For the Will to be valid, all the above steps were to occur on the same day.
The deceased died on 21 October 2020 survived by her husband, she was not survived by any children.
Re O’Day  VSC 169 is an application for a grant of probate of a document described as a will of the deceased dated 15 October 2020 (the Document) and prepared during the COVID-19 pandemic.
The deceased instructed her solicitor to prepare and electronically sign the Document on her behalf; followed by two witnesses under ss 41(5)(a)-(e) of the Regulations and s 7(1) of the Act.
However, after the Document was executed and witnessed the solicitor did not write and sign a statement on the Document to the effect that it was a true copy of the will which had been executed in conformity with reg 41(5)(f) of the Regulations.
Application for probate
The plaintiff made an application for a grant of probate of the Document on 4 December 2020. However the Registrar found that due to the non-conformity with reg 41(5)(f) of the Regulations, the Document could only be admitted to probate as an informal will under s 9 of the Act.
There are three requirements for an informal will to be admitted to probate under s 9 of the Act:
- (a) there must be a document;
- (b) that document must express or record the deceased’s testamentary intentions; and
- (c) that document must have been intended by the deceased person to be their will.
The Supreme Court was satisfied of the first two requirements in this case.
The propounder of a will must establish that at the time a testator signs their will they have testamentary capacity, as set out in Banks v Goodfellow.
However, an exception to this approach is provided under Parker v Felgate where a testator who lacks testamentary capacity at the time of execution of their will may make a valid will if:
- (a) the testator has testamentary capacity at the time when they give instructions to a solicitor for the preparation of the will;
- (b) the will is prepared to give effect to the instructions;
- (c) the will continues to reflect the testator’s intention; and
- (d) at the time of execution, the testator is capable of understanding and does understand, that they are executing a will for which they have given instructions.
Additionally, as the deceased’s estate was valued at over $1,000,000, the consent of all affected persons would be required for a grant of probate to be made.
Consents of twelve of the thirteen affected persons were later filed, however, the remaining beneficiary, was unable to give consent as she was a minor.
The Registrar of Probates notified the plaintiff on 30 March 2021 that as:
- (a) consent to the Registrar exercising the power of the Court under s 9(5)(b)(i) of the Act had not been filed and, in the event, the minor was unable to provide consent; and
- (b) they were not satisfied that the plaintiff had established that the deceased had capacity at the time of executing the will,
it was necessary for the matter to be referred to the Court for determination.
On 9 December 2021, orders were made for the plaintiff to give notice of this application and for leave to be granted to the minor beneficiary by a litigation guardian, to file a summons to be joined as a party to the proceeding by 28 January 2022. No summons for joinder was subsequently filed.
The evidence of the plaintiff concerning the signing of the Document together with the solicitors’ observations satisfied the court that, on 15 October 2020, the deceased had sufficient capacity to appreciate that she was signing a will that had been prepared following her instructions.
Additionally upon executing the Document, the deceased believed and intended it to be her will, and she had testamentary capacity at the time she instructed the solicitor to prepare the Document.
The Court ordered that the Document be admitted to probate as an informal will.