Online wills are still a relatively new arrival to the estate planning world and while they are clearly increasing in popularity, they haven’t won everyone’s full confidence quite yet.

In coming years, we’ll no doubt see more and more probate applications involving wills that were prepared online, which will inevitably ease concerns for will-makers and nonprofits alike.

However, until then, it’s important to remember that online wills aren’t actually any different to traditional wills. They’re prepared online but they still have to be printed off, signed and witnessed just like any other will. They are just like any other will.

The legalities

One of the most significant perceived differences is that online wills aren’t created with the help of a lawyer or solicitor. But there has never been any legal requirement to seek assistance from a lawyer or solicitor when drafting a will.

Certainly, this would be the recommended path for individuals with complex estate needs as lawyers and solicitors can assist with intricate legalities.

However, for anyone with relatively straightforward intentions, an online will or a self-drafted will can more than suffice – while also saving the will-maker hundreds or even thousands of dollars.

So, if there’s no requirement for a legal professional, what does it take to create a valid will?

Firstly, as with any will, the will-maker must be of sound mind and must fully understand the implications of the document. The will must also be written willingly, without any undue influence from other people.

There are also a number of specific legal requirements within the will itself.

The basics

There are some minor inconsistencies between states when looking at the legal requirements for making a will. In NSW, they’re laid out in Section 6 of the Succession Act 2006 (NSW).

The requirements include:

  • The will must be in writing, either typed or handwritten
  • It must be signed by the will-maker. If the will-maker is unable to physically sign the document, someone else can sign it in their presence and under their instruction.
  • The will-maker’s signature must be made and acknowledged in the presence of at least two witnesses, present at the same time
  • Two of those witnesses must witness and sign the will in the presence of the will-maker
  • The will-maker’s signature must be made with the intention of executing the will

These basic legal requirements are easily met by wills prepared online, as long as the will-maker follows the correct procedure for printing, signing and witnessing the will.

When these requirements are not met, the will may be referred to as an informal will and Courts decide whether it can be deemed valid based on the individual circumstances.

The recommendations

In addition to these basic legal requirements, there are also a number of recommendations that are often made to increase the likelihood of a will successfully completing the probate process.

These recommendations include:

  • The will-writer and witnesses should all sign in each others’ presence
  • Everyone should use the same pen, or at least the same colour pen
  • The witnesses should not be beneficiaries in the will
  • The will-maker should date the will before signing

So why the uncertainty?

When signed and witnessed properly, online wills can easily meet the requirements laid out for a legally-binding will – so why does uncertainty remain? There are a couple of reasons.

Firstly, wills created online are not recommended for complex situations. For example, you may have multiple overseas investments, you may want to create a trust for someone, or you may want to ensure all family members are excluded.

In situations such as these, a legal professional can draft a more complex will which adequately addresses the intricate legalities involved. However, for much of the Australian public, a self-drafted will more than suffices.

In fact, around 50% of Australian adults have no will. A basic will prepared online is certainly a significant improvement on no formal estate plan at all.

Secondly, online wills are still relatively new and, as with any technology-driven advancement, it always takes time to win everyone over.

It is clear though, that the masses are embracing online wills. Since Gathered Here launched online wills in 2021, over 25,000 wills have been completed via the platform.

For people who have relatively straightforward estate needs, online wills can more than meet their requirements while also saving them several hundred dollars on legal fees.

Past cases

Since they are relatively new, there is limited data surrounding probated wills that were prepared online – but there have been a number of cases which show courts are taking them seriously even when they don’t meet the basic requirements.

In 2021, one NSW woman wrote an online will but did not print, sign or have it witnessed. She sent an email to her lawyer letting them know she had written a will and where to find it, but warned it would not be signed by the time she died.

Eventually, the Supreme Court of NSW ruled that the informal will should be upheld as a valid will, despite it not meeting the basic legal requirements.

This is by no means the first time an Australian Court has upheld a non-valid will which was created using technology. In 2013, Queensland Supreme Court ruled that a will typed within the Notes App on an iPhone should be upheld as a valid will, despite not meeting the basic legal requirements.

These situations are unique in that both will-makers ended their lives shortly after writing the wills, so the Courts showed greater flexibility where they otherwise might not.

However, these extreme cases prove that courts are open to accepting digital alternatives even when they’re not properly executed. There’s no reason to think they wouldn’t accept a will prepared online when signed and witnessed properly.

So, yes, online wills absolutely have the capacity to be legal and valid. They just have to meet the same requirements as any other will.

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