Can you really sign your final wishes over a Zoom call without the whole thing being tossed out by a judge later? The law moves with the speed of a sleepy turtle, and quite frankly, it’s frustrating. We live in an era where I can buy a house or get a divorce with a few clicks, but when it comes to the final end of your earthly estate, the rules are a patchwork quilt of “maybe” and “it depends.”

In the actual reality of today’s Australia, the answer to whether a will can be witnessed electronically is a resounding “sometimes.” It depends entirely on which side of a state border your chair is currently sitting in.

The COVID legacy that changed…

Before the world turned upside down in 2020, the idea of witnessing a will via video link was legal heresy. You needed two witnesses, one room, and a lot of pens that usually ran out of ink at the worst moment. Then came the lockdowns. The government had to scramble. They’s finally realised that if people couldn’t leave their houses, they couldn’t make wills, which is a bit of a problem during a pandemic.

Most states introduced emergency rules. Some of those rules stuck around like a stubborn houseguest, while others vanished the moment we stopped wearing masks. Gosh! I remember trying to walk a client through a Skype call in 2021 while their cat kept stepping on the keyboard. It was a mess.

Why Victoria is basically the…

If you live in Victoria, you’re the lucky ones. The Garden State decided to make the future permanent. Under the Wills Act 1997, Victoria now allows for what they call the “remote execution procedure.” This means you can sign your will electronically, and your witnesses can watch you do it over a video call.+1

But there is a catch. There’s always a catch, isn’t there? At least one of the witnesses must be a “special witness,” which is usually a lawyer or a Justice of the Peace. Also, everyone has to be physically located in Victoria at the time of the signing. Wait, I think I remember a case where someone tried to sign from a beach in Bali and the whole thing — anyway, the point is, stay in the state.

The New South Wales paper…

New South Wales is a bit more of a halfway house. They have made remote witnessing permanent via Audio-Visual Link (AVL) under the Electronic Transactions Act. This sounds great until you read the fine print.

While the witnessing can happen over Zoom, the testator (that’s you) generally still needs to sign a physical piece of paper. You sign the paper, the witnesses watch you on the screen, and then you have to get that paper to them so they can sign it too. It’s a bit like a high-stakes game of “pass the parcel” through the mail. It is not a fully digital process, which feels a bit like buying a Tesla and then realising it only runs on coal.

When Queensland and others…

Then we have the traditionalists. Queensland, Western Australia, and South Australia have largely reverted to the old ways for wills. In these states, the temporary COVID rules have mostly expired. If you want a valid will in Brisbane or Perth, you generally need two humans in the same physical room as you.

Yikes! I’ve seen people assume the video-link rules were still active, only for their families to end up in the Supreme Court fighting over an “informal will.” Now, the courts in these states can sometimes accept a digital will as an “informal” document if they are convinced you really meant it, but that involves lawyers, and lawyers are expensive. Believe me, I know the invoices we send out.

Why your neighbor’s cousin…

You might hear people say, “Oh, I signed mine on a tablet and it was fine.” Don’t listen to them. Using the wrong method is the fastest way to ensure your estate ends up being eaten by legal fees.

The risks of electronic witnessing are real. You have to worry about:

• The technology failing: If the recording cuts out or the witness can’t see your hand actually signing the document, it’s a problem.
• Undue influence: How does a witness on a screen know there isn’t someone standing just out of camera range pointing a finger at you? (Or a gun, though that’s less common in the suburbs).
• Metadata issues: If you’re in Victoria using electronic signatures, the metadata of the file becomes part of the evidence.

What the process looks…

If you are in a state that allows it, the procedure is quite strict. You can’t just record a TikTok and call it a day. Usually, you must:

1. Ensure the witness can see you and the document clearly.
2. State out loud that this is your will.
3. Sign each page in their view.
4. Ensure the witness signs a statement confirming they used the remote procedure.

The whole thing should probably be recorded, though it isn’t always mandatory. It just makes things cleaner. Speaking of clean, I really need to wash my coffee mug; the stains are starting to look like a Rorschach test.

The final end of the…

At the end of the day, just because you can do something electronically doesn’t mean you should. If you can get two people into your lounge room, do it the old-fashioned way. It is safer, it is cheaper in the long run, and there are fewer “can you hear me now?” moments.

The law is trying to be modern, but it’s still wearing a wig and gown underneath the digital filter.