Written by Wills & Estates Principal Lawyer, Brooke Reardon.
The COVID-19 pandemic has seen an increasing number of restrictions put in place regarding movement and gatherings of people and households. As a result, there has been a significant uptake in digital platforms such as Microsoft Teams and Zoom as a way to stay in touch with family, loved-ones and colleagues. Furthermore, the past 12 months has forced many industries to ‘communicate, transact and learn to operate online’.[1]
The limited capacity to meet in person has made a significant impact on the legal industry and it has become impractical, if not impossible, to arrange for wet signature executions or processing of legal documents. Consequently, as an emerging new trend, the witnessing of and preparation of legal documents is progressively being conducted electronically. This move to going electronic is heavily reflected in estate planning services where legislation and technology come together to develop electronic Wills, electronic grants of probate and electronic witnessing.
Electronic Wills
Historically, making a Will has been a very strict process. Deviating from these strict requirements and steps, even slightly, resulted in the Will being deemed invalid or extra work needing to be done, to prove its validity. Thus ultimately wasting time and money. Over time, some of these stringent requirements have eased slightly, yet most remain. In Australia, we follow the English model for creating a Will and Testament, whereby the Will is only valid if:
- The person is over 18
- Makes the Will voluntarily
- The Will is in writing
- The person has testamentary capacity to make the Will
On top of this:
- The Will-maker must sign the document with at least two witnesses; and
- The Will-maker must have these two witnesses sign the document
COVID-19 restrictions have made drafting and witnessing a Will extremely difficult and the legal industry is reviewing its processes to adapt to the new way of working. Electronic Wills are not yet formally recognised but are bound to eventually become a reality and likely the new standard. COVID-19 has made them more ‘relevant than ever’[2] and it is up to practitioners to adapt and get on board what will inevitably be the normal practice in a few years’ time. The transition will not be quick or easy for policy makers and practitioners, but it will surely benefit the wider population and citizens from all over the world in many ways.
Obtaining an Electronic Grant of Probate
An important part of a Will is the selection of an executor, or representee, who is responsible for distribution of one’s estate. In order to perform the role, the executor needs a grant of probate. The traditional way of submitting a probate application was through paper documents and a physical location called “the registry”. The courts have recently established a new way to apply, through the Electronic Court Management System (ECMS), which allows everything to be done online. This system has already been established in South Australia and Victoria, and will eventually roll out in the other states. However, there hasn’t yet been any indication of when this might be.[3]
How it works
Firstly, it allows applicants to track their applications so that they can see how their applications are progressing and manage them. Secondly, it will ensure that all legal documents, drafts and matters can be handled electronically. It will no longer be required to engage the registry in person, thus greatly improving the turnaround times. This makes documents easily accessible for the public, as the only thing someone has to do to search for any grants, is to set up an account.
The Process of the Electronic Court Management System (ECMS)[4]
- Register an account with the ECMS of your state.
- Start a case/ defend a case/ view judgement
- Lodge required documents
- Receive notifications regarding your case
Electronic Witnessing
Electronic witnessing can be undertaken by scanning a hardcopy document containing a physical signature and sending it through electronically. This process is required to be witnessed through audio-visual software such as Zoom, Skype or Microsoft Teams. The purpose of the audio-visual link is to authenticate the client’s identity, to confirm the client’s decision-making capacity, and to ensure that the client is signing both freely and voluntarily, rather than signing under duress, undue influence or unconscionable conduct.
Alternatively, rather than physically signing a document, the signature itself can also be administered electronically. Electronic signatures can be conducted via a number of devices, including a tablet, smartphone or laptop. This signature must be accompanied by a statement indicating that the electronic signature was conducted in accordance with the relevant rules and regulations.
In this digital age, the demand for electronic execution, electronic Wills and online processing of legal documents is growing. It is important to stay on top of your estate planning, even if there are restrictions in place. Seeking legal advice from a succession lawyer is recommended as the law is different from state to state and could impact your current Will or estate plan.
[1] Kimberley Martin TEP, ‘Technology and Wills – The Dawn of a New Era’ (2019) STEP, 1-75 (webpage) https://www.step.org/sites/default/files/media/files/2020-08/Technology-and-Wills_The-Dawn-of-a-New-Era.pdf?fbclid=IwAR2AOBem_3Qrp8qXiuDy6TBMSvVkrgYnOyVBHxD1EpfExAUDhGUn8MQB7Ck.
[2] Ibid.
[3] ‘RedCrest-Probate efiling Information’, Supreme Court of Victoria (Web Page) <https://www.supremecourt.vic.gov.au/wills-and-probate/redcrest-probate-efiling-information>.
[4] ‘Probate Rule, Form and Procedure Changes', Court Administration Authority of South Australia (web page), <http://www.courts.sa.gov.au/RepresentYourself/ProbateRegistry/Pages/ProbateAndCourtSA.aspx >.
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