If I make an Online Will, is it Valid?
How technology has changed perceptions of what constitutes a valid will - and what this means for you
When most people think of a will, they picture a lengthy, wordy document that has been drafted by a lawyer and signed by the willmaker with the words “I give and bequeath” repeated throughout. As you can probably guess, the reason that wills have traditionally been such voluminous and specifically-worded documents is so that it reflects the intentions of the willmaker. This should of course remain the primary consideration when determining the validity of a will, but changes in the way we communicate mean that making such a document doesn’t have to be nearly as arduous as it used to be. In the same way that people tend to communicate primarily by email, text message and social media, legal documents have extended into the online world. A few recent cases show that the room for what constitutes a valid will is widening with the advent of the Online Will, but that the fundamental consideration is still the same – the intentions of the willmaker.
This article will look at the examples of an unsent text message and a video as valid wills, and explain how an Online Will can provide an efficient, legal and enforceable way to ‘make your will known’.
A Will as an Unsent Text Message – The ‘My will ?’ Case
Last year the Supreme Court of Queensland found that an unsent text message ending with the words ‘My will ?’ was found to be a valid, albeit informal will. This was because earlier in the message, the drafter had outlined their assets and who they were specifically to go be given to. This was also relevant considering the circumstances of the deceased, who had drafted the message to re-allocate his assets to his brother and nephew, rather than his wife. This case exemplifies that the most important factor in determining the validity of a will is the intention of the willmaker. Though it is not recommended that you make a will this way, this case also provides that the way people have traditionally made wills has evolved, further paving the way for people to make an Online Will.
A Will as a Video Testament
In 2015, the NSW Supreme Court held that a video recorded of an elderly woman reciting her wishes (two days after making a written will) was tantamount to a valid informal will. The Court found that although the will was not in writing, the willmaker’s wishes could not be called into question. This case served to dispense the need for a will to be in writing, but it must be noted, that the costs of litigation and the time spent resolving the case (3 years) could have been avoided if it was in writing.
Although these cases represent the extremes where technology has affected the administration of a will, it does not mean that wills have to continue taking the form they have for centuries. There are online platforms where you can draft a will and have it reviewed by a solicitor to ensure its validity.
This is perhaps the happy medium between using technology to make processes (such as willmaking) less expensive and more efficient, whilst still ensuring that the core requirements of a valid will are fulfilled.
Are you Considering Creating a Will or Updating it? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.
Jackie is the Content Manager at Lawpath and manages the content team. She has a Law/Arts (Politics) degree from Macquarie University and is a solicitor in NSW. She's interested in how technology can help shape the future legal landscape.