Electronic Signatures vs Wet Ink: Does it matter?

Here at Willed, we’re often asked if online Wills can be e-signed (ie. signed digitally). While we agree that digital signatures are a million times more convenient than wet ink signatures (who can be bothered printing off a bunch of papers, scrounging around for a pen that actually works, and signing a signature by hand?), we’re unfortunately about to become the bearers of bad news:

Wet ink signatures are best practice, so signing by hand is the way to go.

So, what actually is a digital signature?

Unless you’ve been living under a rock or don’t have access to a working computer, you’ve likely e-signed documents before. An electronic signature refers to an insertion of pre-created text. It can be a picture, a mark, your name written in plain text, or your name written in fancy cursive (so it kinda looks like a handwritten signature… but it’s not). You’d then click a button which would tell the sender of the document that you’ve officially ‘signed’ the document.

This is super convenient, and as society adopts more technology in a range of industries, we’re finding that e-signatures are becoming a more common, sustainable and convenient way of ticking legal boxes.

Got it. And what’s a wet ink signature?

A wet ink signature is exactly what it sounds like. It refers to picking up a pen, and physically signing a printed document. This means that all witnesses of the signing need to be physically present when the document is being signed.

Why are there potential problems with e-signing a Will?

We wouldn’t recommend e-signing a legal Will because it leaves room for questions, error, and can potentially invalidate your Will if the e-signing isn’t completed correctly.

An example of an electronically-signed Will ‘going wrong’ was in the case of Re Curtis in October 2022.

Of course, the 2020-2022 period was a challenging one, globally. We saw cities (*ahem* Melbourne) plummet into harsh lockdowns, and citizens were prevented from hanging out with too many people at once. This made wet ink signatures a little challenging to obtain, as witnesses need to be present – in person – for documents (with wet ink signatures) to be legally signed.

In June 2021, mid-lockdown, a testator wrote a Will using remote execution that adhered to the Victorian Wills Act. The whole process took place over Zoom; the testator e-signed the Will, and then sent their signed version through to the witness via DocuSign. The witness then e-signed their own signature and sent it back to the testator.

The entire process was recorded, so technically there shouldn’t have been any issues, right?

Well, wrong.

In this case, the testator’s computer was just outside of the camera frame when he was e-signing his will. Sure, he appeared on camera, but the recording doesn’t capture his actual signing of the document.

When the testator passed away just a few weeks later, and the executor applied for probate, the Registrar of Probates questioned whether the testator’s e-signing met legal requirements. The witness could clearly see the testator signing the will, but the recording couldn’t.

As a result, the Victorian Supreme Court ruled that the electronic signature requirements weren’t met, and so, the testator’s will was deemed invalid.

Sounds harsh, but that’s why we recommend wet ink signatures. There’s far less room for error.

I e-signed my will during the COVID-19 lockdowns. Is that a problem?

It’s not a problem, per se, but we’d definitely recommend re-signing your Will with wet ink just to be sure it’s legally valid.

What requirements do I need to meet to ensure my Will is legally valid?

There are a few requirements you need to meet to ensure you (or your family) won’t face any legal hurdles after your pass. According to Victorian Law, the specific requirements you’d need to adhere to in order for your Will to be valid, are:

• The Will needs to be in writing;
• The Will needs to be signed by the testator (the person writing the Will);
• It can be confirmed that the testator intends to make the Will;
• The testator signs the Will in the presence of at least two witnesses;
• The testator and the witnesses sign and date the Will

If a Will doesn’t meet the above requirements, the Court may decide that the Will is invalid. As a result, the estate might not be distributed in the way the deceased would have wanted.

Wrap up

In summary? Sometimes old school is best. And in the case of legally signing a Will? It totally is. Don’t risk it – grab an old-fashioned pen, invite your witnesses over for tea, and have them witness you signing your Will, in person.

Haven’t written your will yet? Ready to get all your legal ducks in a row and ensure your estate will be distributed according to your wishes? Start your will online today in just 15 minutes.