Proctor : December 2017
26 PROCTOR | December 2017 Technology as a value add Leveraging technology and demonstrating value In stepping into my roles as QLS deputy president and president, I saw technology and its ability to challenge, change and enhance our profession as being central to all practice areas. As such, one of the themes of my presidency was to explore ways we can leverage technology to demonstrate our value as solicitors to the community. It is fair to say that the area of succession law can sometimes seem to be the last bastion of the old ways – bound original Wills in paper, signing requirements and the like. However, it is clear that while the legislation might well be trailing the technology, we succession lawyers are actually embracing new ways of doing things. At the Society’s 2017 Succession and Elder Law Conference, I participated in a panel dealing with many current issues in our discipline, which included the possibility of taking a Will on an iPad – using a checklist like the Lexon checklist, but using a PDF annotate app to write on the notes with a stylus in the same way as if they were printed checklists. While this is a wonderful example of thinking outside the box and looking for ways to use technology for the benefit of the client, on balance, such a practice would not suffice for the purposes of making a formal Will in accordance with the Succession Act 1981. Slowly but surely, we are moving towards electronic transactions and signing documents electronically. In Queensland, this is regulated by the Electronic Transactions (Queensland) Act 2001 which prescribes the framework for electronic signatures and transactions. However, that Act is not applicable for testamentary purposes. Section 7A(1) of the Act provides that it “does not apply to a transaction, requirement, permission, electronic communication or other matter of a kind mentioned in schedule 1.” Schedule 1 details “Excluded Transactions” and excludes (at paragraph 6) “a requirement or permission for a document to be attested, authenticated, verified or witnessed by a person other than the author of the document”. [emphasis added by author]. A “document” is defined in section 5 of the Succession Act as: “ (a) For Part 2 [Wills], other than section 18 [Court’s power to dispense with execution requirements for will, alteration or revocation], means any paper or material on which there is writing; or (b) For section 18, see the Acts Interpretation Act 1954, schedule 1.” [emphasis added by author] (Pursuant to section 4 of the Acts Interpretation Act 1954, a contrary intention appearing in any Act displaces the application of the Acts Interpretation Act.) Therefore, for the purposes of section 10 (how a Will must be executed), the document is only any paper or material on which there is writing. By that definition, an electronically signed document would likely not suffice for section 10. There is room for argument that “material” could refer to an iPad, however it would be, as Sir Humphrey was fond of telling his minister, ‘a very courageous’ lawyer who took that view.