In Australia, an Amicus curiae ‘friend of the court’: – is usually a barrister, who, at the court’s discretion, advises the court, offering information, expertise, or insight on the issues in the case on a point of law or a matter of practice:

That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.

Levy v Victoria(1997) 189 CLR 579; 146 ALR 248; at 259.

Brennan CJ continued:

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court believes that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

Levy v Victoria(1997) 189 CLR 579; 146 ALR 248; at 259.

Re Curtis [2022] VSC 621.

Carl Curtis ‘the deceased’ died on 21 June 2021, aged 76 leaving a will dated 7 June 2021 appointing his son, Adam Curtis ‘the plaintiff’, as executor and trustee of his estate leaving the residue of the deceased estate to the plaintiff.

The deceased’s will was purportedly executed under s 8A of the Wills Act 1997. The Remote Execution Procedure was introduced into the Act following the passage of the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 which allows the electronic signing and witnessing of legal documents in Victoria; including Wills.

The executor used an online signature tool and an audio-visual link, with two witnesses participating in the meeting and also applying their signatures electronically. Although the meeting was recorded an audio-visual recording is not required under the remote Execution Procedure. Importantly, an audio-visual recording may only be made if all parties consent: s 8C(1).

The Court found that s8A(4)(a) of the Wills Act requiring all witnesses to clearly see the signature being made operates in addition to the requirement that the testator and witness sign the Will ‘in the presence of’ each other as is generally required under s7.

The Court held that the legislature intended to require more than the mere presence of the testator and two observers by audio-visual link – the witnesses must have an unobstructed view of the testator and the document they are signing: at 99

RedCrest Probate

On 2 September 2021, the plaintiff sought a grant of probate of the deceased’s will by making an application through the RedCrest- Probate eFiling System under Order 1A of the Supreme Court (Administration and Probate) Rules 2014.

The application was the first made to the Court with a document executed under the Remote Execution procedure.

On 30 September 2021, the Register of Probates informed the plaintiff that due to uncertainty around compliance with the remote execution procedure, and owing to the unique circumstances the plaintiff’s application was ultimately considered on the papers by a Judge of the Court: r 1A.04

An applicant for a grant of probate of a will is to submit in RedCrest-Probate by filing a copy of the original will or other documents for which the grant is sought: r 2.02(2)(a)

The original will or other document is to be filed with the Registrar of Probates within 28 days after the application is submitted in RedCrest-Probate. r 2.02.1

The original will must also be exhibited to the affidavit in support of an application. 2.04(2)(d)(i).

The decision

The Court reserved its decision as to whether the deceased’s will was executed under the remote execution procedure however it was satisfied that, even if the will was not executed following the remote procedure, it would be admitted under s 9 of the Wills Act as an informal will. In the best interests of the estate, probate of the will was granted to the plaintiff on 9 December 2021.

Subsequently, the Court granted leave to Mr Richard Boaden and Mr Nicholas Baum of counsel to make submissions as amici curiae on the following issues:

(a) the requirements for compliance with the remote execution procedure; and

(b) whether execution of the will complied with the remote execution procedure.

The amici curiae provided detailed written submissions concerning the requirements of the remote execution procedure, ultimately submitting that the deceased’s will was not executed in compliance with the Wills Act at 81.

Given the novel and important issues raised by the application, the Court considered it desirable to deliver reasons to guide the profession.

Careful attention be paid to the requirements of the remote execution procedure when seeking to execute a will by audio-visual link…practitioners should not assume that wills that do not comply with the remote execution procedure will necessarily be admitted as informal wills. The determination of whether the Court is satisfied that the requirements under s 9 of the Wills Act have been met will depend on the facts and circumstances of each particular proceeding.

Re Curtis [2022] VSC 621 at 168