A Guide to Electronic Wills

For centuries, the formal processes involved in confirming a will’s authenticity and legally enforcing the testator’s wishes have undergone little modification.

However, amid technological advances in modern society, there has been a notable increase in the number of cases involving electronic wills. An electronic will comprises all of the same elements as a standard will but, as the name suggests, it is written or signed using a digital medium.

The Fundamentals of Estate Planning

A will is a formally written legal document that outlines how an individual’s estate should be managed in the event of their passing. The testator of a will has the ability to create multiple wills throughout their lifetime to cater to their changing wishes. It is, however, essential to note that only the last valid will written by the deceased will be taken into account when administering their assets.

When writing their will, the testator has the opportunity to appoint an executor. The individual they select is by no means required the accept this responsibility, however, those who do will be obliged to manage and distribute the testator’s assets as per their wishes. If the deceased fails to appoint an executor of their estate, the court will assign a suitable person, known as the administer of a will.

Prior to the distribution of the deceased individual’s assets, their appointed executor or administrator must apply for a grant of probate. Authority to manage the testator’s estate is only bestowed to the executor once the Supreme Court has issued probate and, as such, confirmed the will’s legal validity. Because of this, beneficiaries aren’t entitled to the assets they’ve been assigned by the deceased in their will until the court has approved a grant of probate.

The assets allocated by a deceased individual in their will can be of both financial and sentimental value. Surprisingly, one in two Australians are yet to construct a legally enforceable will of their own. Although many people may find the notion of writing a will daunting, in the event of your passing, such document will play a significant role in your estate’s administration. Because of this, completing a valid will is essential for those wanting to ensure that any remaining assets are managed in accordance with their personal wishes. If you need help to write a valid will, speak to legal professional in this area.

What is an Electronic Will?

The term “electronic will” can be used to describe a number of documents including, but not limited to, those that have been written on a computer word-processing program or as a note on an individual’s mobile device. In some cases, the court may even accept a video created by the deceased as an authentic and legally enforceable will. There has also been an instance where the Queensland Court found an unsent text message to be a valid will.

As suggested above, there’s a diverse range of situations that a testator’s wishes in an electronic will could be administrated. It is, however, important to note that because of this it’s often difficult to apply a general standard or rule when confirming the validity of an electronic will. Wills of this type are still relatively new and, as such, the legal system will continue to build strong foundations that guide the assessment of their legal enforceability in future.

The Key Requirements of a Valid Electronic Will

For a will to be considered valid, regardless of whether it’s electronic in nature, there are a number of key requirements that must be satisfied. The legal formalities that a will must be in compliance with are outlined in The Wills Act 1997 (Vic) (‘The Act’).

Section 7 of the Act stipulates that, for a will to be deemed legally enforceable, it must satisfy the following guidelines:

• The will must be in writing;
• The testator needs to have signed the document;
• The will maker must have intended to make the will;
• When in the presence of the testator, two witnesses must sign the will.

When assessing whether an electronic will can be admitted to probate and administered under legislation, Section 9 of the Act is particularly important to consider. This is because an electronic will doesn’t always satisfy the core requirements outlined in Section 7 of the Act but, in some cases, can still be recognised as a legally enforceable document.

Under Section 9 of the Act informal documents can often be admitted to probate and, in such instances, have the potential to be deemed valid. The execution of the formalities defined in Section 7 may be excused if:

• There is a “document” present;
• It is determined by the court that the testator intended for this “document” to function as their last will and testament.

So, when would Section 9 of the Act be deemed relevant?

In cases where the deceased created an electronic will, such as that in the form of a video that was recorded on their personal laptop, Section 9 of the Act may be considered. Section 7 of the Act specifies that, for a will to be considered valid, it must be in writing and signed in the presence of two witnesses. These impartial parties must also sign to confirm that the testator did, in fact, approve the final document to function as their last will.

In cases where the deceased individual filmed an electronic video will, it’s likely that the above conditions of Section 7 will not be satisfied. However if the court determines that the video is a relevant “document” that the testator intended to act a valid will, under Section 9 of the Act a grant of probate can be issued.

Evidently, there are instances when the deceased individual’s will can vary from the core requirements and still be considered valid and legally enforceable. It is, however, still essential that the testator of a will:

• Has the mental capacity required to make a valid will;
• Understands the nature and effect of their will;
• Is at least 18 years old and, if this is not the case, has gained court approval;
• Was not under undue influence or coerced when making their will;
• Intends for the document to function as their last will and testament.

The Three Core Types of Electronic Wills

In the case of electronic wills, there are three main document types that may be accepted as valid and enforceable under the relevant legislation. Electronic wills will typically fall into one of the following categories; offline electronic wills, online electronic wills and qualified custodian electronic wills.

Offline Electronic Wills

In the first scenario, offline electronic wills, the testator writes their will on an electronic device. Offline electronic wills can be typed or, alternatively, an individual may “handwrite” the document using a stylus. In such situations, typically, the deceased will have created their will using a word-processing program on their computer or tablet. This document is then saved to their hard drive, as opposed to being posted online or printed.

Online Electronic Wills

Contrary to those created offline, when writing an online electronic will the testator uses a third party service. In such cases, the deceased individual’s final document is created on a platform that does not have the primary purpose of storing electronic wills.

For instance, an individual who is unwell in hospital may become concerned with how their assets will be managed if they don’t recover. Realising that they have not yet created a valid will, they could decide to message a trusted person using Facebook messenger. In this message, the individual clearly outlines how they would like their estate administered in the event of their passing. This would, essentially, be considered to be an online electronic will.

Qualified Custodian Electronic Wills

A qualified custodian electronic will is created when an individual uses a third party, for-profit entity to write their will. When a testator writes a qualified custodian electronic will, they are able to streamline the formal process of creating and executing a valid will.

This is done digitally, with online platforms providing individuals with a basic form to fill out. Once completed the appropriate authentication is completed online, with companies even providing access to witnesses using webcam capabilities if required. The testator’s resulting electronic will is then conveniently and safely stored on the third-party server.

However, even in the instances mentioned above there is still no guarantee that electronic wills will always be successfully admitted to probate. As such it is essential that, for a will to be administered, the court is provided with sufficient evidence of both the document’s authenticity and the testator’s intent to create a valid will.

Want to Find out More About Electronic Wills?

At Hentys, we can help. Our dedicated team of Estate Lawyers have extensive experience in contesting a will, challenging a will and defending a will in estate dispute cases.

For more information, or to receive expert assistance in settling cases involving electronic wills, please do not hesitate to get in touch with Hentys today. We can determine the merit of your case and provide you with the valuable guidance required to achieve the outcome you deserve.