Unlock the Power of eSignature Legality for Planning in Australia

How to eSign a document: eSignature legality for Planning in Australia

woman jacob which is war andrew for welcome i'm carol grimshaw the chair of the electronic wheels and online witnessing committee i'd like to acknowledge that this webinar meeting is being held on the traditional lands of the wonder people of the kulin nation and the lands and peoples of aboriginal nations on whose land we all work live learn and play and i pay my respect to elders both past present and future the electronic wills and online witnessing committee also recognise those who whose ongoing effort to protect and promote aboriginal and torres strait islander cultures will leave a lasting legacy for future elders and leaders the ewok and its parent the australasian cyber law institute is delighted to welcome an esteemed panel comprising his honor justice rieden chief judge of the commercial list of the supreme court of victoria and appointed to the court on 10 march 2015 and registrar kate price registrar of probates of the supreme court of victoria since 3 december 2020 and with a 15-year career in the court working around probates prior to her appointment they both join us this evening to discuss the justice legislation amendment open bracket system enhancements and other matters close bracket act 2021 which commenced operation in victoria today for our purposes we'll abbreviate that to the justice act for this evening we also welcome our special interstate guest and uh friend of ewok chris herald partner of mullen's lawyers in queensland chris is a specialist in whales and estates and is generously taking time out from her anzac day public holiday to talk with us today about the progress made in queensland in electronic playback filings chris is also chair of step queensland and will perhaps talk to us about just how far advanced queensland is compared to us we'll first hear from registrar price who will speak about the justice act and her experience of applications during the code regulations we will then turn to judges on the judge reading to understand his experiences of court in the covered period and is on his views about the introduction of the justice act 2021 today we understand that there's been some broad experiences as between both parts of the court before moving on to the town hall and our fabulous audience chris howell will round out our discussion panel with her perspective on just how advanced victoria really is and her experience as part of a special committee that helped pilot the introductions of electronic filing in queensland probate we'll be addressing all of your questions at the end of the panel and if you haven't had an opportunity to register your questions we'll be delighted to receive those in the chat registrar price thank you very much for joining us this evening thank you carol thank you so much for inviting me to talk again um it's always a pleasure to come and talk about these sort of things and particularly where it gives me an opportunity to actually talk to the profession and provide some guidance which i know that they're very keen to receive at the moment particularly with the changes to the legislation um also thank you for bringing up the idea of saying the justice act because i was sort of thinking it's a bit of a mouthful to keep saying it over and over again so i appreciate that a lot um i think it's amazing that you timed this to be on the 26th of april 2021 when the act is actually coming into effect with respect of a lot of changes that have been made um the significant changes i want to talk about today obviously to the wills act 1997 but i do just want to start by just reminding people that the other significant changes that come into effect today are permanent changes to the oaths and affirmations act 2018 which now allows the electronic audio visual witnessing of after david's and i just want to remind everyone that now is the time to update precedence a lot of solicitors and members of the profession created precedence around the time that the regulations came into effect allowing the signing of affidavits and they will obviously need to be updated to make reference to the correct information as required under section 27 1a of the act as it's been amended by the justice act um that's all i'll say on that because i know that you'll you'll all go along and have a look at your precedence now and make sure you're complying with the new requirements under the act what i want to talk about mainly is the changes to the world's act 1997 and the position we are now in in relation to being one of the very rare jurisdictions in the world that allows the electronic signing of wills there's a couple of jurisdictions around the world that have taken that steps you've got a couple of states in the united states you've got place in canada and some places in canada that you're able to make electronic rules but we are one of the first common law jurisdictions which actually allows the signing electronic signing and witnessing of wills which i think is a massive step and it'll be interesting to see exactly how that works under the wheels act 1997. um what i did want to briefly talk about first before i talk about the changes to the wills act um is basically given a bit of an update in relation to electronic witnessing that's happened under the regulations um obviously you can't witness under the regulations anymore but i think a lot of wills were probably made during the time that the regulations were in effect um from april last year all the way through to this year so we've had 12 months of the regulations in terms of the court's perspective we've had so far 14 applications that have been filed in relation to wills that have been purported to comply with being signed in in in compliance well in purported compliance with the regulations unfortunately none of those have actually met the requirements of the regulations yet so the reason i just wanted to raise this is because if you have made any electronic wheels during that time it may be worthwhile just revisiting those wheels to make sure that you've actually complied with the requirements of the regulations if you have any doubts whatsoever i just recommended recommend potentially getting your clients backing and re-executing those wells so that you can make sure that they comply with the requirements for an electronic will there's two things that have been most significant with respect of non-compliance the first is the section 41 5c which of the regulations which required that the statement by the witness that the witnessing of the will is done by audiovisual link is actually done when appearing via audiovisual link so if you completed that statement and put it into the will before you actually sent it around to everyone for it to be signed then unfortunately you're not actually meeting requirements of the regulations and i know that sounds really particular but our role as at the court is to assess whether or not you've complied with legislation and that is a specific requirement of the legislation i've had solicitors contact me and sort of say well but you know just do i really need to have done that and unfortunately under the regulations you do have to have done that for it to be a validly executed will the other one is section regulation 41.5f which requires the final statement after it's been witnessed that a final statement by the test data or a person who's been directed by the test data to sign regarding compliance with the regulations and again that hasn't been done on all occasions um there's been several instances where one or the other hasn't been done in terms of section regulation 41 5c or regulation 41.5 f but not when both have actually been complied with yet so it's just two things that you really need to look out for if you have done any wills pursuant to the regulations um i think the benefit is obviously that in victoria we have section nine of the louisville's act so all of those wills even though they haven't complied with the regulations they've still been up to proceed so it's not the end of the world um but it does make it a little bit difficult because you're relying on section 9 of the wills act to proceed as an informal will and in those situations you potentially need to or you do need to get medical evidence and you potentially need to appear before the court depending on whether or not there's minors that might be affected and the value of the estate so there are two things that are really important to check over to make sure that you've complied with the regulations if you have done any wills during the last 12 months now luckily um before the act was actually changed this feedback was provided to the government when they were drafting the new bill and the new act the changes to the act um so they were they did take that feedback into account so the court gave feedback that it appeared that the solicitors solicitors were finding it very difficult to comply with the regulations or read the regulations and understand what the requirements were and i think if anyone has had a look at the permanent changes to the wills act made by the justice act you'll see that they're a little bit more straightforward and compliance should be a little bit easier under the permanent changes to the act um the act introduces what's called the remote execution procedure and that's the new section 8a of the wheels act 1997. i should just mention um if you have a look on the legislation website today you can download the new version of the osun affirmations act but the new wheels act hasn't been prepared and uploaded yet um so just hold off maybe tomorrow or the next day it might be available online but once you get a chance to get that new version of the wheels act i recommend downloading as soon as possible and familiarizing yourself with the new section 8a which is a remote execution procedure um now i'm in a bit of a difficult situation here because as the court i can't provide guidance in relation to how you comply with legislation but what because our role is to assess whether or not you've actually complied with legislation but i think what i wanted to do is just bring your attention to a couple of things and a couple of the requirements under the new remote execution procedure and maybe just give you a few questions to think about some things to think about that might make you think about how you might be able to comply with the legislation in a way that makes it easiest when in 20 years time someone's coming along to actually seek probate of the will the electronic will um the first thing is there is a requirement for a special witness um the under the act those special witnesses at the moment are mainly um legal practitioners so an australian legal practitioner can act as a special witness um it can also be a justice of the peace but i very much doubt there'll be many just the peace that decide to do that so the majority of times it's probably going to be an australian legal practitioner that acts as a special witness but there's not a special witness then a remote execution procedure can't go ahead um and i think that was probably done because there were some concerns about potential fraudulent activity um potential for undue influence and the idea of having that special witness is in there is to make sure that there's a legal practitioner who's able to explain the consequences of doing an electronic will and also to make sure that that legal practitioner is still satisfying themselves in relation to the usual things such as that the person has testamentary capacity um the other thing that i think will might cause some issues is the fact that there's a requirement that all people um all the persons being victorious so that's a testator and the witnesses um and also that all steps have happened on the same day and on the face of it if your your real precedent for example doesn't have anything about where the will has been signed um then there's probably going to need to be evidence um in in the future when you can't when it comes time to probate that will to show that all the persons were actually in victoria so it might be for example that if you do decide to do a template will for electronic wills that you decide that you put in the place that it's actually being witnessed so the place that each person is when they're actually signing or witnessing that will and that may just help down the line as i said when 20 years time when someone goes to probate the will um the same goes with the date obviously if there's any issues at all it's probably best to have the dates there so that you can actually make sure that the dates are on the wheel um sometimes there's depending on what software you use there will be a track record of what's happened and where it's happened so things like for example show very clearly where what the dates are um but i don't know if anyone else has had this experience but sometimes you can have the information incorrect because it thinks that you're in america or it thinks you're in a different time zone and that can obviously if it takes a couple of hours for you to do that process then it may be that that information ends up being incorrect because it has a completely different time zone that it's using and it's gone over from one day to the next day but that's just the sort of thing you probably need to be mindful of and making sure that there's some sort of evidence that shows that it's all getting done on the same day um the other thing that i think might cause some issues or sort of some people might not realize is a special witness always has to be the last person to sign the will even in circumstances where the special witness is in the room with the test data when they're signing the will they still have to send it to anyone who's appearing by audiovisual link and then get it back and be the last person to sign that will so something to be mindful of even in situations where they're together where the testator and the special witness are together um i think the other thing that will probably i can't really speculate on because i think it's probably going to have to be something that's decided by a judge of the court when and if it happens but there is a requirement you have to clearly be able to clearly see the electronic signature being made and i think it's probably up to each solicitor to decide whether or not sharing screen would basically comply with that requirement or it doesn't mean that every person who's attending either as the test data and other witnesses needs to have two devices so that you can physically see if you can actually clearly see the person who's making as they're making their signature not just via a shared screen so those are the sort of things i think will have to be thought about um from the perspective of the probate office and the court um there's two things that um have sort of developed over the time that we've been that we've had electronic bills and i think they'll probably continue the first is requirement for an affidavit of due execution um it's quite common practice within the probate jurisdiction to require an affidavit of due execution any time there's a departure from section 7 of the wills act because section 7 is quite um straightforward in terms of you know together with two people anytime it's something like it was read over or it was translated or it was signed by someone else like a marksman any time it departs from that straightforward type of execution we do require an affidavit of due execution and i i think this will probably be the same i know that some practices some practitioners have adapted a practice of creating an affidavit of due execution at the time that they actually do a will that requires due execution so for example if they're having a translated will they'll do an affidavit of due execution at that time and store it with their will so that when it does come time in the future to assess whether or not that execution has happened correctly um they've already got the evidence there to be able to prove it it's not an issue if you it's like six months or 12 months later but i know for a fact that when the 1960s and the 1970s so you can imagine in 40 years time if we're assessing whether or not someone's complied with the act it'll be very difficult to do so in circumstances where solicitors might have moved on the special witness might no longer be in practice and might not be able to be tracked down so it's just something to think about whether or not you want to do that at the time that you're actually witnessing an electronic will and in that in terms of that um that affidavit of due execution would need to address all of the requirements under the act so they would actually go through and say it this is the step we took then this we then next step we took then we took this step then we took that step so that it could be seen that the compliance with the actors actually occurred the other thing that i think um that we've adapted where we've had purely electronic wills under the regulations is requiring the original will to be filed um i think a lot of people probably have questions about what is the original will um it's a bit clearer and it was actually a bit clearer under the regulation which the original will was because it was the final version that was signed by the testator um in this circumstance it's still fairly obvious under the act that the original will is the one that has actually been signed and endorsed by the special witness um what's an original electronic document it's a bit difficult because as soon as you make a copy of that document then it's no longer an original it's a copy but what we've been requiring at the probate office is for any electronic will to basically be filed on a usb um without any renaming or anything like that so basically a straight drop from a straight drop from the file straight onto the usb so that all of the metadata and all of the information of the file is still preserved and can be investigated if anyone needs to investigate it into the future um those are practices that we've obviously adopted to the electronic bills that have been um regulations but i think that they'll probably be similar under the act um and the changes to the rules will be considered by the rules committee in relation knows potentially making those requirements a permanent requirement that's something for the rules committee to determine whether or not those changes need to be made to make it clear that their requirements in these situations um that's probably apologies you just dropped out for a moment there yeah it's really funny because i'm at the court and usually our internet connection is quite stable but yes i think something must have dropped something must have gone wrong um so what did you last hear carol i last heard uh about the electronic will to be filed on a usb that was the last full statement that i heard yeah so i just said after that um just be mindful that the rules committee may decide to make some changes to the rules to reflect those practices that have been adopted um and just um as usual keep your eye eyes and ears open for any changes that come through in relation to rules as a result of the changes to the act the permanent changes to the act um the final thing i will say um and i'm happy to obviously answer any questions that people have but i don't want to spend too much time just talking to everyone the final thing i'll say and i touched on this earlier is just to remember to download the legislation when it becomes available and make sure you're working off the correct versions of the legislation and to update your precedence because we want to see um affidavits if they've been witnessed via audiovisual link we want to see those affidavits the giraffes of the affidavits updated to make sure that they actually reflect what's happened um and the authority for and make sure it corresponds with requirements under the act thank you carol thank you registrar price um wonderful as always very informative i'm sure that everybody will be looking out um for the full act um full wheels act when it comes becomes available and for the full oaths and affirmations act when it becomes available and updating precedence um like it is split so i'd like to um thank you very much once again and let everybody know that of course we'll be directing questions to register our price um at the end of our panel uh your honor judge reading um if you would like to i'd like to thank you very much for joining us this evening um we're delighted to hear your thoughts on the justice act thank you carol um what i might do if i could is share the screen i hope you're able to see that what i'm going to talk about the justice act um has its main purpose to amend various courts and justice acts to provide for the ongoing operation of certain processes and procedures implemented during the covert 19 pandemic the just over just over 12 months now the commercial court has been operating almost entirely virtually as a consequence of the pandemic during that time last year we were able to actually improve our throughput of cases from the previous year despite the fact that we had virtually no live hearings at all and had to adapt to a new system the what i wanted to talk to you today because carol said that i could tailor the event to my needs is to identify the changes that we had to adopt last year to do trials and hearings virtually because we're at a point in time right now where what's been contemplated is reverting to live trials but we have learned so much about the advantages of technology and so much about the way other ways we might be able to do things and we're convinced that there are ways that we can make the court system more cost effective and more generally effective by picking up some of the lessons that we've learned what i'm particularly interested in uh if is feedback from members of the profession as to things that they think we should retain from the practices we've adopted during the 12 month in during the last 12 months so in terms of practices the first thing is that in the commercial court we have intensive case management and all of that case management has gone from live hearings to um to virtual hearings and the the first thing we changed was that previously all of our live hearings were say at a particular time at 10 o'clock on a friday when all of the cases for management would come on before the court and they would be dealt with during the course of the day as a result of the pandemic we started making appointments and so that each matter was given it's a unique time and whilst plainly enough from time to time we'd run over pretty much effectively we're able to deal with matters on basis of an appointment the um the cost savings should be pretty obvious that it meant that a lot less lawyer time was involved and people could judge their days to fit in with the appointment again interestingly there was feedback from people saying that there was a reduced opportunity for those appearing the advocates appearing to have a discussion outside of court while other matters were being dealt with you also thought that there was a less opportunity for people to sit in court and be if you like educated as to the court management techniques and to learn how the court tends to expect practitioners to prepare their cases so it's one of those things whether or not we should continue it is one of the things where appointments is one of the things we'll need to consider we we started giving more thought to what we will really try to achieve in particular case management so sometimes for example especially early the person who prepares the pleadings really needs to be there because there will be likely to be searching questions as to what's the real defense to this case because um the defense may not make it very obvious and in terms of trying to get to the real issues it's critically important that the parties who know most about the case are in court and are able to address pretty specific and challenging questions so that we can manage and massage how in fact the case will be conducted or prepared to ensure that the real issue gets exposed on other occasions though it might just be that there's been non-compliance and we need a rescheduling of a hearing and that would be most commonly best done by normally the solicitor who's got it in hand and might know when the experts would be available to prepare their reports or other matters likewise whether witnesses are available often the solicitor would be more appropriate those sorts of features indicate that it's another advantage in in the court communicating to the parties what the nature of the management is likely to be so that the proper person can be available but online hearings will often mean that both the solicitor and the council or possibly senior council will be available whereas with directions days often the for example if council has briefed the instructing system won't bother turning up because it's a day out of their lives much less involved if in fact all they're doing is working away until the particular case comes up on the screen so that has real impact on the ability to have everybody available if different questions come up that might be better dealt with by the solicitor who's in touch with witnesses or otherwise the advantage for regional interstate practitioners we've had a lot more interstate practitioners appearing during this time because they don't need to fly down to victoria to appear we've heard quite a bit about the convenience of lawyers with child care responsibilities um and the other thing that can occur because these are streams all of these hearings clients who don't normally come along case management hearings can easily tune in to hear what's being said it can be very informative for a client if they're listening in because judges tend to give a lot away about what they think about a came or a defense in the course of a case management hearing that the client might be very interested to hear but very rarely would clients come in on to spend the day sitting around for case management hearings and it raises the question of whether or not we should have hybrid hearings which are what i mean by that is whether some might appear by video link and some might appear it live those sorts of things are the things we're going to have to deal with interlocutory applications to move along give rise to similar sorts of questions they have some other advantages for us they reduce courtroom pressure and that is that we've only got a limited number of courtrooms and of course if we're doing it online we don't need to take up a courtroom for a day similar convenience for lawyers with child care responsibilities similar cost savings for interstate and regional practitioners dealing with interlocutory applications that way similar advantages for streaming often they won't come along clients to interlocatory applications but it's very easy for them to get online and watch the streaming of it um urgent matters can be dealt with much more easily the supreme court of victoria and commercial court in particular has a duty judge online 24 7. there's always a judge online and the fact is is that judges can put themselves in waiting for their duty to come on they can be at a holiday house and wherever they might want to be as can the lawyers if an urgent application arises the fact that they don't wouldn't need to come into court is a significant advantage again we'll need to deal with the question of whether in the future we allow or parties are comfortable about allowing some people from interstate for example to appear by uh by video link and others to appear live um certainly it'd be interesting to see whether the same amount of interstate hearings continued we've had people linking from moscow for purposes of case conference case management conferences something that really we just hadn't dealt with before uh trials was very interesting because whilst the commercial court has had online [Music] electronic filing for some years but all of a sudden many of our judges who have been always wanted hard copy court books hard copy lists of authorities hard copy transcript have really had to adapt and did so remarkably well to enable the court to continue to operate and so all of them have gone in that sense substantially paperless some will want to revert to paper no doubt but um i know that others both in the profession and on the bench have discovered that for example electronic transcripts are a very good way of dealing with things and electronic authorities uh electronic court books have just become the norm plainly witnesses giving evidence from home and work the sorts of questions of swearing and affirming affidavits identification of witness statements the sort of thing that the act deals with justice act deals with were found cross-examination with the zoom application was really very effective it's quite interesting from a judge's point of view that because you bring up the person live and you're seeing them much closer than you normally would in a courtroom where much of the time you're looking if not the back of their head certainly the side as they as addressing questions from council um enormous advantages and i was talking to mentioning to kate price before international witness especially experts much more available if they don't have to fly out here and obviously the cost savings is dramatic we've dealt with concurrent evidence between four and five witnesses at a time on on zoom and i have to say may well be a better way of dealing with them than having them sit effectively in a jury box to deal with their different responses when giving concurrent evidence which is very common these days professional witnesses not so much but medical witnesses i know very much encouraged by the fact that rather than cancel a day's surgery if they can be fitted in at a particular time at midday for their hour of evidence they can get on with doing their important work and the truth is the experience has shown that their evidence and the cross-examination by by the zoom link can be just as effective especially for someone like an expert witness where normally credit's not going to be an issue it avoids this whole question witness unavailability the case can't go on i was told because one of the witnesses will be you can't list it for them because one of the witnesses will be in western australia in kalgoorlie and i said well google's got a very good wi-fi system it's just not really a problem at all and it completely removes that whole question of the difficulties in trying to make sure that all the witnesses will be available the the odd witness maybe not the critical witness but the odd witness being dealt with virtually i think is something that we will want to retain rather than have to move whole trials now i think live streaming enhances open justice dramatically if you haven't tried it the number of times you could if you find a case that's that's interesting the press obviously find a very efficient way of being able to have a look at what's happening in court while still working on other things allowing it to happen in the background interested parties can observe there are issues about witnesses being out of court but they're matters we can deal with um finally and generally the um the savings of course with all electronic filing and service without paper uh having to serve matters by paper and the efficiencies become obvious affidavits signed and witnessed electronically admitted in circumstances where sometimes non-compliance is a real efficiency we are changing the rules about affidavits to get rid of separate exhibits because when you're looking at something online trying to go through the separate exhibits is a nightmare much easier to have one lump of exhibits all paginated and you can whether you hyperlink from the affidavit or just go to the pdf page number much more efficient way of doing it we can have man we can mandate hearings on the papers we've adopted a system of electronic signing of orders or judgments for another day we can talk about how we'll be able to improve that with some more software in the future virtual mediations which are a big part of keeping cases moving in our court have continued and been and the mediators report to me the associate judges and registrars that they've become after a slow start very effective at putting people in waiting in breakout rooms and visiting them and dealing with it certainly the advantages of face-to-face mediations can't be underestimated but the ability in um for interstate people and international people still to be president of the mediation albeit by zoom is a great advantage to making sure that the person responsible for the decision can be still involved so the what i'm interested in now or if somebody would later want to contact my chambers i'm very interested in what people think about some of those things that would be well to retain or for that matter things that they would be very keen to get rid of at this critical point where we are now moving back to live hearings thank you carol that's what i wanted to say judge thank you very much it seems like the experience in the court has been on the whole very positive despite the challenges that it's faced um in the commercial list and and the other lists um perhaps we might have a conversation at another time about the ewok assisting the court um in preparing or providing to the profession um a questionnaire so that we can gather some information on the processes and the thoughts of the court as well as and convey those to the or be a communicator of information between the court and the profession certainly um anybody who has questions of a judge at the moment can do so in just a short while right now we're about to hear from chris herald chris is the partner of mullen's lawyers and has been working in wills and estates as a specialist for some time she is a step uh queensland committee chair and um is has participated in a a program that assisted the current queensland justice department or the department of courts um to work through any um technical glitches that might occurred in the implementation of the digital platform that is now um queensland probate or probate the queensland supreme court i'll uh welcome you thanks carol um i must confess after listening to judge read and register price um i do feel like that um you know queensland's really only just beginning its electronic journey and so um i am not entirely too sure um how i can um you know can i all i'll be doing is just um letting everybody know what um at the current experience and feeling is in queensland because um i'm certainly really interested um in if there are things that we could be doing in queensland uh that's our counterparts south of the border are putting into increased efficiencies that would be good um uh judge readen mentioned um e-filings and commercial matters i think the words you use judge were been around for quite some time or a number of years well as of uh as of about two weeks ago the only documents that are available in queensland for e-filing are applications for grants of representation so uh so grants of probate grants of letters of administration they're the only documents that are currently available um for e-filing um mullins lawyers um was one of a number of um firms that assisted the court with their pilot program so my experience was sort of um helping the court iron out the kinks of their online filing system and i'm really hopeful that um they will be uh rolling it out for other practice areas obviously than my practice area of wills and estates so the um process the experience that we had was really excellent um i think you had julie steele in one of the last or recent um events here and she she made the comment um because i emailed her about it afterwards uh was that um from the back end she thought it was quite clunky but from the front end the user experience and we've only had a really easy um a really easy experience we have found that it's a pretty seamless process during the pilot there were a few issues with for example because of how straightforward it was you know i could file an application for a grant of probate and actually have the grant issue later that day effectively as soon as the original will had been delivered to the court which for a practitioner such as myself who works in the cbd it's very easy to send a clerk to the court with the original will which meant that um i didn't have this experience um within our pilot but um i do know some of the other firms are in the pilot and they had the experience where um a party wanted to file a caveat against a grant but um you know obviously it was not um hugely advertised as to which firms were participating in the pilot program and so there were some practitioners who wanted to file academia against the grant that were too slow because um they were relying on the usual two to four to six week time frame for a grant to issue from the court and that simply didn't happen um time frames now that it's available queensland wide are evening out it's still a really fast streamlined turnaround and it's been a really positive experience um from our end although as i said after listening to um judge ritter and richard still price become a little bit i think jealous of the uh because e filings obviously been a really big part of the practitioner experience in victoria for some time so that is definitely something that i personally would like to see be embraced in queensland and perhaps with the success of the e-filing program for grants of representation it will be rolled out elsewhere um the other thing that um you know i just thought that i'd contribute to the conversation about today is to just um give an update as to where queensland is at is at with respect to the uh remote or online witnessing of wills and enduring powers of attorney so unlike victoria who has legislation that has commenced from today we're still operating under queensland's emergency covert response legislation which has a very long name and i'm not going to repeat it all here because i lost the screen that i had it up on and i can't remember it's exact the exact act name but that legislation um has recently been extended to expire on the 30th of september of this year which means that practitioners in queensland are still able to use um or test data in queensland are still able to get the benefit of the remote witnessing requirements for wheels and enduring powers of attorney but at this stage that will only that will end on the 30th of september i just thought i'd mention quickly as well i know it's because register price mentioned um i think there's been a number of requisitions or matters or in formal wills i think you said 0 out of 14 was the strike rate under the victoria's emergency response legislation i don't actually have the queensland figures here but i do know that one of the things that happened in queensland was that the chief justice made a practice direction which empowered the our probate registrar if a will had been signed between i think the commencement of the pandemic and a particular date which i believe was the 30th of september last year so it's no longer operative but if a will was signed within that period then the pro and there were certain other conditions met where it was really clear that you know testamentary capacity wasn't an issue there weren't any other weird evidentiary issues that really properly should have been determined by a judge the probate register is able to make an informal will order in those particular circumstances so that was one of the ways that the supreme court of queensland tried to help the public um in this process i don't actually know if that practice direction has been um relied upon yet i um might ask the probate register so um we're coming back to the electronic execution of wilson the emergency response legislation i would say that the queensland profession is pretty much divided 50 50 as to whether that legislation should be extended or made permanent there are a lot of concerns amongst some queensland practitioners i'm not including myself in that because i think that clients are now demanding services like this amongst other things i mean i it's difficult to explain to a client why they can sign a contract to purchase their home electronically but they cannot sign their will electronically that distinction and understanding can sometimes be difficult to explain to a client but as at yet the electronic transactions act still has a specific carve out uh in relation to the signing of wills and enduring documents so um i think some of the big concerns about making it permanent is the idea that um that we don't want to be contributing um to or promulgating um or elevating elder abuse uh one very experienced and well-known queensland solicitor at the sixth session at the queensland law society succession and elder law symposium who's a very experienced practitioner a very skilled interviewer of clients had was interviewing an elderly person and it was only picked up right at the very end of the interview that there was actually someone else in that room that was there what someone was in the room i guess feeding or assisting and i'm using that word with that quotation marks there because um it was clear that that person was influencing to some degree the responses that were being given to the interview questions i know that there are a lot of safeguard protocols that can be put in place for example can you turn your camera around can you show me you know who who else is in the room questions to ask about who's in the room etc um i do think that there is a um concern amongst some queensland practitioners that that's not um you can't substitute being in a room and closing a door and being certain as to who is actually in that room and who is actually having that conversation i think that that the proper balance would probably look like enabling the legislation and then that simply becomes um evidentiary matters if these things do proceed to to court about undue influence um or if really solemn form proceedings arise as a result of the execution and the circumstances that it was made in another thing that is a really big difference to how um between the victorian legislation and the way things currently stand in queensland is that we cannot use any sort of electronic signing platforms so wet ink signatures are required even in even whilst the remote execution procedure is being used so for example that can be quite difficult for example if you know if i'm seeing a client i need to email it to them or post it the will to them or get it to them in paper because they actually need to affix i need to be able to view them using the audio visual technology using like fixing their wet ink signature or incorporate the use of a substitute signatory which is also quite involved under their queensland emergency response legislation because if i were to be the substitute signatory for a test data i would have to effectively find um you know about two other lawyers to or one other lawyer to serve as a special witness and in addition to the other lawyer as well so you end up getting having more and more people um in the involved in the execution process if you're using the signatory and i was really interested in the your comment register price about how practitioners would possibly satisfy themselves as to how you would be like visually seeing them affix an electronic signature because um i think that's a really interesting evidentiary matter because uh if i'm just using this zoom conference as an example carol if you were to share your screen and i could see a document all i can see is a signature appearing on the document there is no way for me to actually eyeball you clicking the mouse to put that electronic signature on the document so i think there's some interesting evidentiary questions that um i hope there's a decision sometime soon from victoria so we can see what that looks like i think overall though that um that progressing the area this area of law in queensland would be a positive thing to do as i said before from a client demand perspective i also think that for as long as there has been wills there has been fraudsters no matter what time no matter what century there's always been people who have been trying to procure a will in an unscrupulous manner um and that it will just become a part of evidence in proceedings about the validity of wills enduring documents um are also um particularly um they're being scrutinized um in queensland uh in relation to the for the elder law context so um we've just had um a slight amendment made to our emergency response regulation um that came into effect last week or the week before which was clarifying the timing of the placement of the wet signatures on the document so there was a bit of confusion as to so in queensland the principal signs the document the witness you know has to sign the document in two places and then the attorney if they're at once they're accepting their power that they've been given by the principal also need to sign the document and there was some concern about the timing of the placement of the signatures as in if the principal has signed the document but the witness hasn't yet found the document is it still open for the attorney to affix their signature before the witness has actually put their signature on the document anyway anywhere so there was that was clarified and the answer is yes the attorney can affix their signature beforehand um the special witness yeah so we've had some numbers okay we've forgive me for interrupting them interesting conversations in victoria about how we manage our probate and estate instrument documents as well we did start with the past the parcel method um which was last year and we've we're somewhat grateful to have moved on i would think it does cause some complexity it's interesting that you've raised the power or the attorney documents as part of your discussions they've been because um it would be remiss of me not to know that the power of attorney regulations have been updated in victoria and now include special forms or updated forms that came into effect today so those might be some documents that registrar price ends up having to manage or to to say as part of her work as well i think judge um reading and also might have might say some of those but far more um less regularly and chris thank you very much for a very informative chat about the position of queensland at this time we certainly look forward to in victoria being able to help perhaps um going forward you know and you know keeping up the conversation with queensland and we've had some some questions that have come through and um i think there's a couple that sort of cover the field although there was one specific that i saw about affidavits being um about the effectiveness and validity of affidavits if the affidavit maker is um overseas and uh is making um or the affidavits being taken here judge reading you would have seen affidavits that have been taken in those circumstances i'm trying to remember whether we've actually had i must have i would have thought carol um the question is asking about the validity of the the affidavit will just pull up andrew woods of woods wills lawyers asks uh will new legislation enable us to take affidavits for victorian matters from individuals located interstate and overseas and of course any opinion i might have about that would be of course subject to a far more senior view well i think your opinion much more important as kate said we're not very good at giving opinions we're not allowed well we're not allowed to charge for them anymore carol so we don't like giving it right right i see well i can certainly understand how um how you might feel about that i think there's some very interesting cross-border jurisdictional questions there because the emergency response legislation enacted in queensland has actually specifically said that i can sign up for an enduring document for instance sign a queensland form for somebody who is not present in queensland and that is a valid document so um which i note is i think different to the victorian legislation that came in today that makes it clear that everybody that's utilizing that legislation needs to be within victoria i'm sorry if i've misquoted that that's right for wills everyone needs to be in victoria um but the oston affirmations act is silent in relation to where everybody needs to be um there's two parts of the ocean and affirmations act that people might want to look at and that's for who's able to witness affidavits when they're witnessed in victoria and then who's able to witness affidavits when they're outside when the deployment is outside of victoria and then you probably need to make an assessment of whether or not you fit within one of those categories but it is silent also on what is deemed to the place of witnessing whether that's the place where the opponent is or whether it's where the witness is um so that's something that requires a bit more research carol i think it is um registrar price um we might ask uh andrew woods whether um we've satisfactorily answered his question andrew if you'd like to put a comment in or if you'd like to come on and have a chat with us oh hello uh thank you for that yes i think it's still an open uh question which was why i asked it uh quite a lot of people whether it's in a probate situation or even litigation in the wheels and probate area we have clients that are overseas and if it's possible to take those affidavits without dragging them elsewhere or or sending them off to other notaries public in other parts of the world it would be a very efficient use of time which is why i asked the question i think more research is the answer isn't it i think so andrew um the tentative view held by the ewok is that it depends upon the legislation of the uh of the state where the deponent is situated and the domestic legislation so in our example if the uh affidavit taker was um in new south wales or put onto another place more um luxurious perhaps italy or something if um if they were in italy then i mean the affidavit maker was there and we were the solicitors witnessing the affidavit and you know issuing the oath then for our purposes in victoria the the affidavit would be okay on our end it would just depend upon what's happening on the other end if there's got you know equivalent law so it needs to be a little bit more refined um the unidroid principles are really um of a commercial application and so we probably need to they probably need to be more broadened out um into a more legal for a more legal application um in litigation and and the other ways that we use signatures and witnessing but maybe that's something that ewok can make submissions about like you know one of the projects um you know unit submissions to the uh legislators across australia the individual jurisdictions to clarify all of those issues or perhaps even introduce some uniformity but considering the uniform succession law project started in the mid early 90s and hasn't yet been implemented that's a big that's a big task well you know we have uniform um or you know roughly uniform electronic transactions acts so we should be able to you know deal with a smaller part which is you know affidavits and and the like so um andrew thank you very much for your question um inez are you you are available to have a conversation with us about um what happened with medical treatment makers and in the justice act deniz calwight from khq lawyers has asked about the appointment of medical treatment decision makers and why they were not included in the justice act and um oh we've got a question a written question several written questions did you want to come on live in this or would you like to stay as you are maybe pop through an answer um hello there you are yeah i am sorry um i just need to go ready that's okay here we go we didn't catch you walking the dog this time which you know is pretty gorgeous yeah that's right now i i was um i was actually at the funeral today so i i'm just a bit rushing around but yes um that that was my question um whether there's any insight into why the um medical uh the um medical basically powers of um attorney medical treatment we're taking uh taken out of this legislation because of course for practitioners um we kind of sell everything in a in a package so uh the will the financial power of attorney and um for better words the medical power of attorney and when because the medical power of attorney is not part of the legislation that makes it kind of difficult from a practical point of view i i love as i probably you know last time said i really like this kind of legislation and um and would like to make more use of it i i live in a country victoria even though i practice in the city but i i can see that it would be very useful for people perhaps with with a disability or people from country victoria who can't travel to their to their um solicitor to make use of this legislation but if you are limited in terms of the sort of the three main documents that one signs uh it kind of in my eyes almost defeats the purpose because you would have to send the client out to have assigned witnesses for the medical power of attorney in any event so i'm just wondering whether there's any insight whether they what the particular reason is that the um the medical power of attorney was not included or the appointment of medical treatment decision maker decided properly i certainly can't speak for any contribution that the court made to the um to the then bill but as a stand-in um contributor contributor to the liv um tech and innovation committee i was able to participate in um the work that was done around you know providing policy advice and the position um at the time was that a medical practitioner needs to be involved and otherwise it's a policy decision that needs to be taken in the future it's something that needs to be managed perhaps more carefully than otherwise um wills and estates wills and other estate instruments might need to be given the degrees of um impairment that are experienced by by patients who are in the situation of needing a medic well or for want of a better phrase as you say a medical power of attorney so it's something that sorry i'm not i i'm not um particularly like i'm not talking about the advanced care director of course only the medical power of attorney um which uh yeah i was just wondering but thanks for that carol that's um interesting in this thank you and um naomi gard has said uh uh she agrees 100 uh with all of your comments but um certainly um the medical treatment area um and sort of the medical powers of attorney they need to be something that will be dealt with some over time um thank you very much for joining us this evening in this and i hope all goes well and for the rest of your evening um thank you that's okay that's really interesting that that has been dropped from the legislation um in queensland we don't have the two separate documents we we use one enduring power of attorney document and we can appoint people for personal and health matters and financial matters under the same document so um that's really interesting that that's been dropped certainly is um phil hendenberg who i understand is in the room has asked um if there's any difference between state and federal jurisdictions regarding a signing um perhaps judge you might like to talk to that question uh carol i really just don't know the answer throughout the pandemic for example in terms of affidavits and court documents there has been nobody who's taken issue with the validity for example of an affidavit by reason of non non-compliance and i think that's probably just been a civil uh a civil procedure act response to the issue that parties are generally mindful of the fact that you need the material and frankly if if an issue was taken i would normally just get the person who gave the affidavit to come online [Music] and to confirm that under a take take the oath and confirm the accuracy of the document so not much is achieved by taking the technical point so and so i just haven't looked at whether or not the federal legislation is relatively different to the state legislation because it hasn't been raised with me thank you and apologies to all for my phone suddenly going off in the middle of um our conversation um i understand that there's a difference with the corporations act um and and companies now being able to sign documents by electronic measures um in that they're no longer permitted to do so the the bill that was being moved before the senate or before the federal parliament got stuck um at the senate level and was only able to um was only able to progress later in the year as i understand it so that leaves companies a little bit high and dryers as it were unless you know section 126 of the corporations act can be used for powers of attorney and deeds but that needs to be further explored i think more research around whether a court or uh definitely whether a court would find um the use of a power of attorney um signed electronically to be valid or invalid um in relation to a company that needs to be further considered before we um could possibly approve any of that particularly given the state of um the delay that's going to come from waiting for the senate to make moves on um the the current bill um there we've also got a question uh from [Music] peter gould about uh recycling documents for if panelists could address that if peter's uh in the room he says that he sometimes recycles a document through for instance he says if i can't have everyone signed at the one time or for the last endorsement on a will so it's necessary by signatory one and the session ends and i get the document for signatory two i just reintroduced that document into and have it signed by signatory 2. does this offend any of covert emergency regulations in victoria is it legally offensive any other way um i think we've we don't need to worry really about the coded regulations now given that the justice act has taken effect um but certainly um registrar price you might have views about a will being signed in that matter i think the key is that it has to be um every signature has to be audio visually witnessed and it all has to be done on the same day and how that occurs um technically whether you're using some other program as long as you're complying with those requirements in relation to it being all witnessed on the same day and all actually being audio visually witnessed i don't think there's any issues with one government's like starting one session ending another and as long as everyone's satisfied that that's the exact same document because that's the other requirement under the act is making sure that whoever is a witness is satisfied that that document that they're witnessing is actually the exact same document it was what was signed initially by the test data yes if you can hear me that's my that was right and i think registrar price has answered the question i i have been recycling a partly signed document through and then for instance having it you know for a will having the final endorsement made in a separate session with effectively a separate document because it's uh the the signed document has been has been completed in and has been sent to me i then put that document through documents again and have the final endorsement signed the requirements of the regulations is that it be transmitted um similar to that so it doesn't matter how you transmit that as long as you're transmitting the document and just and the person who's witnessing it is satisfied that it's the same document so i don't see any issue with that but you just need to carefully look at the requirements under the act and just make an assessment there as to whether or not you're complying but as i said requirements under the actor as long as you're satisfied that it's the same document as long as it's all been done on the same day and everyone's audio visually witnessing the signing of that document and then the main requirements of the act in relation to the validity of the document and then it has to be one final document that's transmitted back to the special witness who then endorses that document and that turns out to be the original yes thanks um christine smythe we might have you as a registrant under um or with a typographical error but i understand that chris herald might want to have a conversation with you if you're available christine if you could please put up your hand you might not have christine i don't know if she's online carol that's okay thank you um is david lucas available please you asked about whether red crest pro forma documents will comply with electronic wills for lodging um of course red crest has two parts red crest probate and breadcrust i meant red crest probate of course so there's two questions that you asked david the first one is in relation to electronic sign-in of wills and probate documents whether they're mandatory or still optional and definitely still optional so you can still witness an affidavit in person and you can still definitely witness a willing person um it's really funny the other day i was putting out we've got this very old excerpt from a newspaper that was done back in the 1950s and it's just a picture of um three people around a table with someone signing something and two other people looking on and it basically just says this is how a will should be witnessed and i was making comment to deputy registrar dunkley that would be quite difficult now to do something similar to show how a wheel has to be witnessed you know you can do it economically it's not quite quite as easy to capture just in one picture but certainly in terms of wills they can still be done you know in person the old-fashioned way with a pen and pieces of paper and the same with documents um however it is mandatory to electronic file in the probate jurisdiction now as a first of july last year so certainly you have to scan everything in and still upload it in terms of the red crest documents that are produced that's the standard affidavit and that's everything that's required under the rules if you were witnessing the affidavit electronically you would need to alter that affidavit to make sure you're complying with the requirements under the legislation in terms of making sure it says that it's being witnessed via audiovisual and etc um and if you're exhibiting the will you may need to make a little bit of an alteration there if it's a purely electronic will because you'd be potentially exhibiting a usb that contains the original document rather than an actual physical paper document so there are a couple of alterations you may need to make to the standard affidavit if you're doing an electronically witnessed will but obviously we create the affidavit for the 99 of the well not probably 99.9 percent of the applications that come through um so there are always circumstances where you might need to make alterations to suit a specific type of application thank you thank you registrar price and we've had a question about um the best technology to use and i would think that the court would not have a view about the best technology and at this time would have to say that ewok doesn't have a view either and we are a one umbrella everybody welcome organisation at this time there's certainly some leaders in the field but that will be the topic of another ewok seminar um and it may be a seminar you may be able to come in person which would be very exciting for everyone we've got a question from carla dunn of plan first legal to register our price on how the electronic wheels failed on usb will be retained by the court the usb would be retained so we actually retained the original will um we keep it for a little while and then it goes off to the public records office nothing will change so that usb that's filed will actually be the document that goes to the public records office as the original will basically as the original document [Music] thank you um there's been a couple of questions which i think that the the justice act does address by amending the electronic transactions act um insofar as deeds are now capable of being signed electronically and the questions directed as well around corporations which um we talked about a little while ago so if they were just checking on our questions um from the audience our q a at the bottom um and i think we might be we might have answered all of our questions um unless i want to just give a moment for people to ask final questions um of judge ridden and registrar price and um chris oh there we go there's a flurry um maybe six does not make a flurry but hey um lucy percy would um from head to heart estate planning i believe lucy and we'd love to know if