Industry Update: Online Wills in the Law

Trigger Warning: This article contains content about suicide.

The Supreme Court of NSW has recently handed down a decision relevant to the landscape of Online Wills in Australia. The case involved a customer of Safewill, and the online Will submission that she prepared prior to her passing in June 2021.

The full case can be found on the NSW Case Law Website - https://www.caselaw.nsw.gov.au/decision/181b2145bffb558fdb9d9beb

What was the case about?

The case dealt with the unexecuted Will of the late Rita Riman, who passed away before finalising her online Will and signing it in accordance with the law in NSW.

In June 2021, Rita made an account on Safewill, completed the online questions in the Will flow (including who she wanted to act as her executor, dividing her estate and leaving gifts) and submitted her Will for review.

Unfortunately, Rita passed away before her Will could be generated by the Safewill platform, or be properly signed.

On the day of her passing, Rita sent an email to her lawyer, outlining that she had “drawn up and completed a will”, with a link to Safewill's website.

After contact with Rita’s lawyers, Safewill provided them with a full extract of the information that Rita submitted to the Safewill platform as part of her Will. That information extract was referred to in the case as Rita’s “online Will”.

What does the law say?

For a Will to be valid, it must be signed by the Will-maker, and witnessed by two independent adult witnesses.

Where a Will doesn’t meet these requirements, it is known as an ‘informal Will.’ The law in NSW allows the Court to make an order upholding the validity of an informal Will.

The Court will only uphold the validity of an informal Will if it can be proven that the deceased person intended the informal Will to immediately operate with nothing more as their last Will and Testament.

Rita’s online Will, being unsigned, did not meet the normal requirement for validity under law. The executor appointed under Rita’s Will was seeking special permission from the Court to approve the informal Will as a valid Will.

What did the Court decide?

The Court found that the informal Will should be upheld as a valid Will, owing to the extensive evidence put before the Court about Rita’s intention in making the online document.

In finding it was a valid Will, the Court referred to:

• The fact that the key elements required for a Will were present, including that the online Will was complete in its terms, that the gifts made grammatical sense and that the wishes were clear;

• The circumstances surrounding the making of the Will, including the proximity of preparing the Will to Rita’s passing (writing the Will the day before her passing);

• The communication Rita had with her lawyer, and the fact that she referred to her submission as “my Will”;

• The communication Rita had with the Safewill chat platform, and the fact that she expressed a wish for the Will to be binding;

• The unsent text message Rita prepared to her sister about “my Will I had made this morning.”

What does this mean for Online Wills moving forward?

This was the first case in any Australian Supreme Court to deal with the treatment of Wills made via an online will-writing platform.

The case acknowledged the important role that technology plays in our community, and in the law, with the Judge stating that “digital communication has become an essential part of the social and economic fabric of society.”

The decision of the Court in this instance confirms that it is possible for wills to be validly written online, with specific reference made to the Safewill Will flow.

Further, the decision of the Court demonstrates that it is possible for online submissions for Wills to be binding, even if the Will document is not signed.

However, the case does not provide a general rule that all Will submissions are binding, even when they are not properly signed. That would need to be determined on a case-by-case basis depending on the facts.

When making a Will online, care should be taken to ensure that the document is signed properly in accordance with the law in Australia. This will avoid complications in admitting the document to Probate, and will make the administration of the estate far less stressful and costly for the family.