The history of Will making is a long and sometimes colourful one, with people leaving some unusual things to their nearest and dearest. Napoleon left his shaved off hair to his family and Shakespeare very thoughtfully asked that his wife be given his “second best bed.”
Wills have also been written, recorded and stored in some truly unique ways. Blood on parchment anyone?
Fast forward to the 21st century where digital and online Wills (sometimes also called e-Wills and Electronic Wills) have become a hugely popular option for Australians who want to create and store their Wills online, saving them time and money, and helping them avoid the complication and stress associated with more traditional estate planning.
Safewill provides you with everything you need for an easy and affordable online Will in just a few clicks.
But how do online and digital Wills stack up according to the law, and are they always legally binding?
The answer has less to do with the technology itself, and more to do with whether the Will meets certain basic criteria.
The 4 criteria that create a legally binding Will
A quick check of the following will help determine whether your digital Will is legal:
1. Was the Will made intentionally?
To make a valid Will, you must have capacity and show intent - meaning you must have the mental ability to make reasonable decisions about what to include in it.
Are you aware of the full extent of your assets, and which of your family members would normally benefit? Do you know the legal effect of your Will?
Safewill gives you an easy step by step process to make intentional decisions about who should benefit from your Will. And having your Will validly witnessed in the way outlined in point 4) will provide the final step to help show that you intended to create a will when writing it.
2. Is the Will in writing?
Handwriting, typing and printing are all considered to be “writing” and are therefore acceptable when it comes to making a Will.
Once your Safewill Will is reviewed, it becomes both an online and printable document, and can be considered to satisfy the “in writing” criteria.
3. Is the Will signed?
A Will must be signed by the person making the Will and, at this point in time, the law requires what’s called a “wet ink” signature, meaning that you need to sign in pen rather than by an “e-signature” like those generated by document signing apps (unless you are in Victoria). This is determined by the Electronic Transactions legislation in each state and territory which mentions the types of documents that can be signed by "e-signature".
After creating your Will on Safewill’s secure site, you can easily print and sign it to satisfy this requirement.
4. Is the Will witnessed?
Your Will should be witnessed by two or more adults who do not benefit from it.
Full instructions are included by Safewill's legal advisers on how to have your Will validly witnessed so you can finalise it for safe storage and, if needed, to update it when circumstances change.
Witnessing Wills usually has to be done in person but in some Australian states there are temporary COVID-related laws that make allowances for video witnessing. We talk about those laws here.
The world can be chaotic at the best of times and we’re all searching for ways to minimise the noise and help us sort our “stuff”.
We order, tap and pay from our digital wallets at the drop of a hat and yet the idea of creating a Will online might understandably gives rise to some fears. Safewill provides a simple solution to banish those fears by giving you the tools to create a customised Will ready for you to sign.
Get started with your online Will today. We're available 9am to 7pm to help with any questions you may have, so feel free to give us a call on 1800 10 33 10 or start a chat with us using the chat bubble in the bottom right hand corner.