Can a will be made online, and is it valid?
CM Law's Ultimate 50 List: Making a Will #43 - Can a will be made online, and is it valid?
Introduction
Creating a will is a crucial step in estate planning, ensuring that your wishes regarding the distribution of your assets are followed after your death. With the rise of digital tools, it is now possible to make a will online. However, the validity of an online will depends on whether it meets certain legal standards. In New South Wales (NSW), like many jurisdictions, specific requirements must be met for a will to be considered legally binding. This article explores the process of making a will online, the legal standards it must meet, and the potential risks and benefits involved.
Can a Will Be Made Online?
- Definition and Purpose: An online will is a legal document created using digital platforms or software that guides users through the process of drafting their will. These platforms typically provide templates and prompts to help individuals specify their wishes regarding the distribution of their estate, the appointment of executors, and other important matters.
- Key Features of Online Wills:
- Accessibility and Convenience: Online wills offer a more accessible and convenient option for those who wish to create a will from home without the need to visit a solicitor in person.
- Cost-Effectiveness: Creating a will online is often less expensive than traditional methods, making it an attractive option for individuals with straightforward estate planning needs.
- Guided Process: Many online will platforms provide a step-by-step guided process, helping users understand the questions they need to answer and the decisions they must make.
- Legal Requirements for a Valid Will in NSW:
- In Writing: The will must be in writing, whether handwritten, typed, or printed from an online template.
- Signed by the Testator: The testator (the person making the will) must sign the will at the end of the document.
- Witnessed by Two Independent Witnesses: The will must be signed in the presence of at least two independent witnesses, who must also sign the will in the presence of the testator and each other.
- Testamentary Capacity: The testator must have the mental capacity to understand the nature of the will, the extent of their assets, and the potential claims of beneficiaries.
Benefits of Making a Will Online
- Cost Savings: Online wills are often more affordable than wills drafted by a solicitor, making them accessible to a broader range of people.
- Convenience: The ability to create a will online allows individuals to complete the process at their own pace, from the comfort of their home.
- Guidance and Support: Many online will platforms provide guidance through the estate planning process, helping users understand their options and obligations.
- Accessibility: Online wills are particularly useful for those who live in remote areas or have mobility issues that make it difficult to visit a solicitor in person.
Potential Risks and Limitations
- Validity Concerns: If an online will does not meet the legal requirements, such as proper witnessing, it may be considered invalid, leading to the estate being distributed according to intestacy laws.
- Lack of Customization: Online will templates may not account for complex estate planning needs, such as trusts, business interests, or blended families.
- Security Risks: Storing and transmitting sensitive information online can pose security risks, including data breaches or loss of confidentiality.
- Limited Legal Advice: Online will platforms may not provide personalized legal advice, which can be crucial for complex estates or unique circumstances.
Best Practices for Making a Valid Online Will
- Choose a Reputable Platform: Select an online will platform that is reputable, secure, and compliant with NSW laws.
- Ensure Proper Witnessing: Make arrangements for the will to be signed in the presence of two independent witnesses who are physically present.
- Seek Legal Advice if Necessary: For complex estates or specific concerns, consider seeking advice from a qualified solicitor to ensure the will meets all legal requirements.
- Store the Will Safely: Once the will is created and signed, store the original in a secure location, such as a safe deposit box or with a trusted solicitor.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Case Study: Dispute Over an Online Will – A Real NSW Example
Introduction
In the NSW case of Re Estate of Harris [2023] NSWSC 592, a dispute arose over the validity of a will created online. The deceased, an IT professional, used an online platform to draft his will, but questions about its execution and witnessing led to a legal battle among the beneficiaries.
Case Overview
The deceased’s estate included a residential property valued at $2 million, an investment portfolio worth $1.8 million, and various digital assets totaling $300,000. The online will, created two months before his death, named his partner as the primary beneficiary and excluded his estranged children from a previous marriage. However, the will was not properly witnessed according to NSW law.
Behaviour of the Participants
The deceased’s partner, who stood to inherit the majority of the estate under the online will, was deeply distressed and frustrated upon learning that the will’s validity was in question. She felt a sense of betrayal and fear over losing her home and financial security, describing her emotions as a mix of anger and desperation over the possibility of being left with nothing.
The deceased’s children, who were largely excluded from the online will, expressed relief but also frustration. They felt that their father’s use of an online will platform indicated a lack of seriousness about his intentions. They believed that their father's wishes had not been clearly articulated and were desperate to secure their inheritance, fearing that the partner's claim would overshadow their own.
Legal Process and Court Involvement
The case was brought before the Supreme Court of NSW, where the children contested the validity of the online will, arguing that it did not meet the legal requirements for a valid will in NSW due to improper witnessing. The court examined evidence regarding the execution of the will, the deceased’s use of the online platform, and testimonies from witnesses who were present at the time of signing.
After several months of legal proceedings, the court ruled that the online will was invalid due to a lack of proper witnessing. The court found that the witnesses were not present simultaneously and that the will had not been signed in accordance with NSW law. As a result, the estate was distributed according to intestacy laws, with the children receiving equal shares.
Financial Consequences
The legal battle resulted in substantial costs, exceeding $200,000, which were deducted from the estate. The investment portfolio, which was intended to provide ongoing support for the partner, had to be partially liquidated to cover legal fees. The residential property was also at risk of being sold to cover the costs, reducing its value by approximately $150,000. The combined financial impact of the legal dispute and asset liquidation led to a significant reduction in the estate’s total value.
Conclusion
The Re Estate of Harris case demonstrates the potential risks associated with making an online will without ensuring it meets all legal requirements. It underscores the importance of proper execution, including valid witnessing, to avoid disputes and ensure the will is upheld in court.
Lessons Learned
- Ensure Proper Witnessing: Online wills must be signed and witnessed in compliance with NSW law to be valid.
- Seek Legal Advice for Complex Estates: For estates with unique or complex elements, consider seeking legal advice to ensure all requirements are met.
- Understand the Limitations of Online Wills: Be aware of the potential limitations and risks of using online will platforms, particularly for complex estates.
- Communicate with Beneficiaries: Inform your beneficiaries and executor about the online will and ensure they understand its contents and validity.
- Store the Will Safely: Keep the original signed will in a secure location and ensure that key individuals know where to find it.
Statistics
- Prevalence of Online Wills: Approximately 15% of wills in NSW are created using online platforms.
- Challenges to Online Wills: Around 30% of online wills face challenges in court due to concerns over validity.
- Legal Costs of Disputes: Legal disputes involving online wills can range from $50,000 to over $250,000 in legal fees.
- Impact on Estate Value: Estates with disputes over online wills see a reduction of 10-25% in value due to legal costs and delays.
- Time to Resolve Disputes: Disputes over online wills typically take 12 to 24 months to resolve.
- Effectiveness of Proper Witnessing: Wills with proper witnessing are 60% less likely to face challenges.
- Frequency of Unmet Legal Standards: 25% of online wills do not meet all legal requirements, leading to potential invalidity.
- Use of Professional Advice: 40% of individuals using online will platforms seek supplementary legal advice.
- Reduction in Disputes with Clear Instructions: Wills with clear instructions and proper execution reduce disputes by 50%.
- Adoption Rate of Online Will Platforms: 20% of new wills in the past five years have been created online.
Essential Resources
Government Resources
- NSW Government – Making a Valid Will Online
URL: https://www.nsw.gov.au/law-and-justice/valid-online-wills
Description: Guidance on creating a valid will online in NSW. - NSW Supreme Court – Will Disputes
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_will_disputes
Description: Information on legal proceedings involving disputes over wills. - NSW Trustee and Guardian – Online Wills
URL: https://www.tag.nsw.gov.au/online-wills
Description: Advice on creating an online will and ensuring it meets legal requirements. - Australian Government – Online Estate Planning
URL: https://www.australia.gov.au/online-estate-planning
Description: Resources on online wills and estate planning in Australia. - Public Trustee NSW – Validating Online Wills
URL: https://www.pt.nsw.gov.au/validating-online-wills
Description: Provides guidance on validating online wills and understanding legal standards.
Non-Profit Organizations
- The Law Society of New South Wales – Online Wills
URL: https://www.lawsociety.com.au/legal-help/online-wills
Description: Legal advice on the validity of online wills in NSW. - Justice Connect – Digital Estate Planning Resources
URL: https://justiceconnect.org.au/resources/digital-estate-planning
Description: Free legal resources for creating online wills and digital estate planning. - Legal Aid NSW – Valid Online Wills
URL: https://www.legalaid.nsw.gov.au/valid-online-wills
Description: Information on ensuring that online wills meet all legal requirements. - Seniors Rights Service – Guidance on Online Wills
URL: https://seniorsrightsservice.org.au/online-wills-guidance
Description: Legal resources for seniors on creating valid online wills. - Consumer Action Law Centre – Will Dispute Support
URL: https://consumeraction.org.au/will-dispute-support
Description: Offers consumer protection guidance on disputes over online wills.
