Is An Online Will Legal?

The History & Future of Will Writing

The history of Will making is a long and sometimes colourful one- with people leaving some unusual things to their nearest and dearest in their estate plans. 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.

What's the catch with online Wills?

Offering to save time, money and complicated planning- online Wills or free Will kits are branded as easier ways to create your estate plan. But is an online Will still valid? What ensures this document holds up in court, and is there a catch to the online Will buzz that you need to look out for?

Safewill provides you with everything you need for an easy, affordable and- crucially- legal Will. Read on to find out how.

Do online options have what it takes to build a legal Will?

As your Will provides a complete guide on where your remaining personal property goes, who the beneficiaries of a family trust are, or the specific instructions for your funeral- it's essential it is recognised as legal and valid by the court.

But when it comes to ensuring an online Will has the same legal recognition as a paper based one- 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 make a Will a legal document

Here's a quick check to help you determine whether your digital Will is legal:

1. Was the Will made intentionally?

To make a valid Will, you must have mental capacity, be of sound mind and show intent - meaning you must have the mental ability to make reasonable decisions about what to include in it.

Testamentary capacity refers to awareness of the full extent of your assets, as well as which of your family members would normally benefit.

Safewill gives you an easy step by step process to make intentional decisions about who should benefit from your Will. With this in mind, having your Will witnessed is a key step to providing evidence of this intention. Follow the steps in point 4) to ensure you meet the requirements.

2. Is the Will in writing?

Handwriting, typing and printing are all considered to be complete “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 two witnesses, in addition to the person making the Will. At this point in time, the law also requires what's called a “wet ink” signature to complete a legal Will.

Legal rules on this mean that you need to sign necessary sections in pen rather than by an “e-signature” - like those generated by document signing apps.

Rules change on this state by state, so it’s important to seek legal advice to clarify.Looking at the Electronic Transactions legislation in each state and territory will provide guidance on the types of documents that can be signed by "e-signature".

With Safewill, we provide a secure site to create your Will and then print and sign.

4. Is the Will witnessed?

Your Will should be witnessed by two two witnesses who do not benefit from it. This legal stipulation often excludes children, an executor, substitute executor or any other loved ones who pose conflict of interest concerns, from signing the Will.

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.

Planning your estate online

So long as Will kits and an online Will meets these requirements- the document is considered legally binding. In this way, a valid, online estate plan can guide the distribution of your assets to family and other beneficiaries; just as well as a traditional Will.

An online Will can be legal, protect your estate and safeguard your wishes - but without the need for excessive solicitor fees. With this in mind, a digital Will can also include legal documents to appoint a power of attorney, executor and decide who your children's guardians would be in the event of your death.

Cost, flexibility and ease of digital Will writing

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”.

Why should planning your estate, organising your assets and providing for your family be any different- considering we order, tap and pay from our digital wallets at the drop of a hat.

Beyond offering a cheaper alternative to writing a Will with a solicitor in Australia, online Wills offer heightened flexibility and ease.

You have the power to make changes to your executor, power of attorney, business assets or beneficiaries with an online Will. Crucially, you can do this at any time and any place. This makes it easier to keep your Will up to date with life changes- whether thats having more children, a change in bank account ownership or de facto relationship with someone named in the Will.

Do digital Wills replace the need for a lawyer?

Given the lack of control over death and the uncertainty surrounding it, the idea of creating a Will online might understandably give rise to some fears.

Downside of DIY online Will Kits

Writing a Will is a complicated, foreign, legal world which we sometimes require a lawyer to navigate with. Free online Will kits can leave this overwhelm all on you- risking that you miss important terms of a form which needs to be signed.

In contrast, Safewill combines the benefits of a traditional Will written by an attorney, with the flexibility and affordability of going online. With a team from our affiliate law firm, Safewill Legal, here to help and oversee- it's a simple solution to banish those fears. Ensuring that your assets are protected by a legally valid estate plan, and that the future of your family, property, money and other beneficiaries are safeguarded by your Will.

Write Your Will Today

Safewill provides a simple way to outline all your assets, lock in your estate plans and minimise the cost of doing so. Whether it's providing for your children, getting your power of attorney assigned, or just organising your estate with your business affairs in mind- the Safewill platform caters to a range of priorities.

That's an easier way to plan your estate, a safe way to secure in your wishes and all without the financial burden to make it all happen.

Get started with your online Will today, by giving us a call on 1800 10 33 10 or via our chat bubble in the right hand corner