How to witness a will remotely in Victoria: a section 8A run-sheet

Most of the remote-witnessing pages that come up in search are either the legislation itself or a two-paragraph news post from 2021. Neither helps much when you're about to open Zoom with an 82-year-old client and a JP. This is the run-sheet version: what section 8A requires, then the order to do things in so nothing gets missed.

What changed, and when

Remote execution started as a temporary COVID regulation on 12 May 2020. Those regulations expired on 26 April 2021, and a permanent procedure was written into the Wills Act as sections 8A to 8D by the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021. So this isn't a pandemic workaround that might disappear. It's part of the Act.

The normal rule still applies to in-person signings: the will-maker signs in front of two or more adult witnesses who are present at the same time, and the witnesses sign in front of the will-maker (though not necessarily in front of each other).

What section 8A requires

• Two witnesses, one of them a special witness. A special witness is an Australian legal practitioner or a justice of the peace.
• Same day, in Victoria. Every element has to happen on the same day and within Victoria. A client at their daughter's place in Albury is a problem.
• The special witness signs last. They also add statements that the procedure was followed, what type of special witness they are, and whether the signing was recorded.
• No counterparts. Section 8B(4): counterpart documents do not constitute a valid will.
• Recording needs everyone's consent. Section 8C allows a recording, but only if all parties agree.
• Not for international wills. The LIV practice note is clear on this.

Check the wording of section 8A itself for exactly how the signed document, or a copy of it, has to get to the special witness before they sign. That mechanic is where firms most often improvise, and it's worth following the Act to the letter.

The run-sheet

Before the call

• Confirm the will-maker and both witnesses will physically be in Victoria at the time of the call.
• Confirm who the special witness is (you, or a JP) and that they know they sign last.
• Send the final will so the will-maker has the right version in front of them. Number the pages.
• Test the video link the day before with the person who'll actually be holding the device. Older clients often need a family member to set it up, so agree that the family member leaves the room once the call starts.
• Decide whether you'll record. If yes, plan to get everyone's consent on the recording itself.

On the call

• Confirm identity on camera against photo ID.
• Satisfy yourself on capacity and free will. The Department of Justice is direct about this: if a witness can't be satisfied about identity, capacity or free will over the video link, they shouldn't sign online.
• Ask who else is in the room. Ask the client to pan the camera if you need to.
• Watch the will-maker sign. If it's an electronic signature, LPLC's reading of Re Curtis [2022] VSC 621 is that the witnesses need to see the will-maker operating the device that applies it, not just see a signature appear.
• The other witness signs, then the special witness signs last and completes the statements.

After the call

• Write a file note while it's fresh: date, time, who was present, where each person was, how identity and capacity were checked, whether it was recorded.
• Get the original back and check every page before it goes into safe custody.
• If anything went wrong on the day (a dropout, a missed step), don't patch it later. Start the procedure again.

Where it usually goes wrong

From the LPLC guidance and the case law, the failure points are predictable: a party who turns out not to be in Victoria, signing out of order, a signature the witnesses didn't actually see being made, and someone trying to stitch together separate signed copies. Every one of those is avoidable with a checklist on the screen next to you during the call.

The signing is the easy, short part. In most simple-will matters the hours go into collecting the instructions beforehand: who the executors are, what the client owns, who gets what, how the house is held. That's the part worth streamlining.