electronic wills in australia - a brave new world

Electronic wills have increasingly grown in prominence in Australia. With the rise in the use of digital technology, it has created complex legal questions about the validity, execution and interpretation of electronic wills. It is important that electronic wills continue to reflect the formal requirements of a will and that any exercise of the dispensing power to allow for informal wills continue to uphold traditional principles in promoting testamentary intention.

Although electronic wills present potential benefits in improving efficiency and reducing costs, there are still challenges for the proper implementation of electronic wills. Concerns about authentication, fraud and safekeeping of electronic documents need to be addressed. For these reasons, there is still legitimate cause for caution from the judiciary in admitting electronic wills into probate.

Technological innovation has allowed society to gain access to information at lightning speed and has revolutionised the way we communicate with one another. In the present, video communication through online platforms, such as Zoom, Skype and Microsoft Teams, have become indispensable tools, which have been accelerated by the consequences of the COVID-19 pandemic. Not only has technology advanced to allow for video communication, but there has also been the emergence of electronic execution of documents through platforms such as DocuSign. These technological developments have had a significant impact on succession law in Australia.

formal and informal

In most jurisdictions in Australia, the law still requires a formal will to be in writing and signed by the testator in the presence of two witnesses. Although each state has a dispensing power to allow for informal wills to be recognised and admitted to probate, the legal recognition of an electronic will is far from a straightforward process.

It is critical to appreciate the law’s demand for strict compliance with will formalities. The purpose of which is to ensure the testator appreciates the significant act of disposing of his or her property through the execution of a will. The purpose of such compliance is to ensure the testator creates reliable evidence of his or her intentions to prevent fraud, duress and undue influence.

A will represents the declared intention of the testator in regards to the distribution of property upon the testator’s death and it appoints an executor and identifies beneficiaries. Terminology such as formal wills and informal wills are just two different ways of identifying a will capable of admission to probate.

s 8 of the Succession Act 2006 (NSW)

Under the current NSW legislation, there is the ability to have what is known as an informal will. The Court can dispense with the requirements for execution, alteration or revocation of a will to find an informal will. A document or part of a document can be used to establish an informal will that purports to state the testamentary intentions of a deceased person, even if it has not been executed.

For a will to be successfully admitted to probate as an informal will under s 8 of the Succession Act 2006 (NSW), the Court must be satisfied that the deceased intended for the document to form his or her will. The Court can be satisfied of intention by a variety of factors, such as the words being in the testator’s own handwriting, signatures on each page, and words being consistent with the conclusion that the testator intended them to form their will.

There are three known principal functions of legal formalities. An evidentiary function to preserve the written record, a cautionary function to remind the individual of the seriousness of the transaction, and a channelling function which requires the testator to take actions in a prescribed format that can be easily interpreted.

The authentication of a document as the one executed by the testator with the intention of having it serve as the binding directive for the testator’s post-mortem distribution of their property is an essential formality. The written nature of a will, the presence of two witnesses, and the action of the testator’s signature all form the basis of proof of the testator’s intention.

Electronic Transactions Amendment

In 2020, the NSW Government enacted the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) to allow for the facilitation of witnessing of documents by audio-visual link during the COVID-19 pandemic and mandatory state lockdowns. The regulation set out a way for a person to witness a document through audio-visual link so long as they observe the signing of the document in real time.

queensland

During the COVID-19 pandemic, the Supreme Court of Queensland decided the case of Re Sheehan. It was an application for probate of an informal will, or in other words, a will that was not executed in accordance with the formal requirements of the legislation.

The deceased had been diagnosed with a brain tumour. The solicitor promptly arranged a Zoom meeting with the deceased. Another meeting was held on Zoom between the solicitor and the deceased on 2 November 2020. The executed will was then scanned and emailed for witnessing. On perusal of the document, it became apparent that the deceased had not signed the fifth page, and the schedule was not attached.

Because the will did not comply with the formal requirements for the making of a will, it became necessary to apply for probate as an informal will. Audio-visual recordings of the critical parts of the process were placed before the Court and allowed the Court to make its own assessment of the deceased’s understanding and intent at that point in time. The Court granted probate of the will executed by the deceased on 2 November 2020 as an informal will.

Victoria

Another case heard during the COVID-19 pandemic was the Victorian case of Re Curtis. Mr Curtis executed a will using the electronic signing platform known as DocuSign whilst concurrently using the audio-visual platform Zoom with two witnesses.

The Court stated that the purpose of the formal requirements is to protect the testator against fraud and to stress the solemnity of executing a will. The Court emphasised the importance of observing the testator and witnesses applying their signatures and seeking audible confirmation.

The Court could not be satisfied that the deceased’s will was executed in accordance with the remote execution procedure and accordingly was not valid. However, the will was admitted to probate as an informal will.

nsw

In Application by Maggie Riman (Estate of Rita Riman), the case was concerned with an application for probate of an online will in NSW that was executed on a platform known as Safewill. An online will kit allows an individual to provide instructions through a digital portal. The electronic will can then be downloaded and printed to be signed by witnesses to validate the will.

The testator paid for the online will and provided her solicitor an email with a link to what she believed was the online will. Aside from the contents of the online will, there was little evidence about the deceased’s testamentary intentions and there was no other direct evidence of the deceased having communicated her intentions to any other person. No prior will of the deceased was located. The form of document was described as an online will questionnaire. The date on which the deceased completed the document was 14 June 2021. The testator committed suicide the same day that she had completed the requisite Safewill questionnaire.

The evidence before the Court confirmed that the deceased completed the online will questionnaire on the Safewill writing platform on 14 June 2021 and that she paid for the will. Due to the day on which the questionnaire was completed (being a public holiday), the document could not be reviewed until at least the next business day. Prior to this occurring, Safewill was notified of the deceased’s death and Safewill did not proceed to generate a will for the deceased. Hallen J was satisfied that the deceased had capacity to make the online will, and it was intended by the deceased to operate as her testamentary will.

Hallen J acknowledged that “digital communication has become an essential part of the social and economic fabric of society”, but noted that each application is to be determined on its own facts.

The development in digital technology does have its advantages when it comes to estate planning, probate, administration and will drafting. Advantages include saving legal practitioners time in drafting, providing more convenience for testators to execute electronic wills, making it easier to amend, store and find electronic wills compared to paper documents.

However, such progression should proceed with caution and a consideration of why there are formal requirements in the first place are critical. The purpose of a testamentary document is to document the wishes and intention of the testator upon their passing.

ability to assess capacity

The ability of a legal practitioner to assess capacity of the testator can be difficult through remote means. In practice, the ability to pick up on suggested warning signs or red flags as to the diminished capacity of the testator by assessing body language cues and facial expressions may be more limited through audio-visual methods compared to in person meetings.

Virtual witnessing and electronic execution may provide ample future challenges to the validity of documents. Undue influence is still a major problem in executing a will and video recordings present their own set of issues in demonstrating that the testator had truly acted freely.

There may soon be a world where electronic wills become the norm or at the very least provide a viable alternative to the traditional holographic will. It is also important to bear in mind that there are legal and practical considerations that need to be considered when considering any advancements in technology.

As technology advances and societal needs change, a critical analysis of the traditional purpose of will formalities is required to ensure the true purpose, which is and always has been to protect the testator.

There may be a future where we are presented with not only holographic wills but also electronic wills. However, there is still a long way to go for the proper implementation of electronic wills. Concerns about authentication, fraud and safekeeping of electronic documents need to be addressed.

Authored by MaryAnn de Mestre, Principal of de Mestre Lawyers

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MaryAnn de Mestre is the Principal Lawyer of M de Mestre Lawyers and a recognised voice in wills and estates, estate litigation, and elder law.

She is known for taking a strategic, no-nonsense approach to complex legal disputes, particularly in family disputes, estate litigation, and family provision claims. While MaryAnn maintains a broad general practice, she has developed a strong reputation for her work in resolving highly sensitive and high-stakes matters involving families and estates.

MaryAnn combines sharp legal insight with decisive action, guiding clients through challenging and often emotionally charged situations with clarity and confidence.

An award-winning academic, MaryAnn was named Academic of the Year (Macquarie University) at the Women in Law Awards. She brings intellectual rigour and real-world strategy to every matter, ensuring her clients are not only protected but strategically positioned for the best possible outcome. MaryAnn has also been appointed as a court-appointed expert in estates and professional negligence, reflecting the trust placed in her expertise and professional judgment.

She is frequently sought after for her legal commentary and regularly appears on ABC Radio and 2SM. Her insights have also been featured in leading publications including the Australian Financial Review, The Guardian, and The Sydney Morning Herald, where she provides commentary on legal issues impacting individuals and families. MaryAnn has a particular interest in elder abuse awareness and prevention and is committed to using her platform to educate, advocate, and drive meaningful change within the legal profession and broader community.

She leads a modern, forward-thinking law firm that challenges traditional approaches delivering practical, results-driven solutions tailored to each client’s circumstances.