Is a completed online Will questionnaire a valid Will?
In a recent case, Justice Hallen was faced with the question “did a completed Will questionnaire satisfy the requirements of being a valid Will?” These days so many things are done electronically, it is easy for people to think they have completed a document when they actually have not: they needed to do something more. That is precisely the case with preparing and finalising your Will using technology such as a “Will App” questionnaire. In this article we will discuss why Justice Hallen decided, that in this particular case, the deceased did in fact have a valid Will for the purposes of s8 of the Succession Act 2006 (NSW).
“Safewill” is an online Will writing platform. To use the platform, a client must create an account and then insert responses to various questions. The client must then make payment at which point the client’s questionnaire is reviewed by Safewill. The software then uses the client’s responses to generate a Will for the customer’s review. At this point if there are any issues with the preparation of the Will, the client is notified by Safewill in order to correct the issue. Once the review has occurred, the Will is released to the client along with information about how to execute the Will.
On 2 June 2022, Rita Riman (the deceased), opened an online account with Safewill using her email address. On 14 June 2022, the deceased completed the online Will questionnaire on the Safewill Will writing platform. Upon completion, the deceased paid for the Will and would have received confirmation of this payment via email and then received a “completion screen”. Due to the deceased completing this questionnaire on a public holiday, she did not receive a copy of this electronic document prior to her taking her own life.
Evidence provided to the Court showed emails between Safewill and the deceased which clearly set out what steps needed to occur to make a valid Will, signing the Will being one of those steps. The deceased sent the link of the Will to her lawyer in the hope that it was legally binding.
Other evidence of the deceased’s intention was in an unsent text message to her sister (the Plaintiff in these proceedings) advising she sent the link of her Will to her lawyer and that she didn’t have time to wait for it to be signed but hoped it would “stick”. The deceased further stated her wishes should she be found and taken to hospital (i.e. not to resuscitate her).
Application of legal principles
Section 6 of the Succession Act 2006 (NSW) (“the Act”) sets out the requirements of a valid Will being:
(a) it must be in writing and signed by the testator …; and
(b) the signature is made … in the presence of 2 or more witnesses present at the same time;
(c) at least 2 witnesses attest and sign the Will in the presence of the testator … .
Where a Will does not meet the above criteria, the document is referred to as an “informal Will”. However, a Court can be approached to dispense with the requirements of s6 of the Act in certain circumstances.
Section 8 of the Act is discussed in the previous article, but an important feature of its operation is that it is limited to validating a document as a Will only if it is invalid due to non-compliance with the above formalities. If it is invalid for any other reason such as testamentary incapacity or a lack of the Willmaker’s knowledge and approval of its content, the Court cannot exercise its discretion under s8 of the Act.
In order to exercise the Courts power to dispense with the formal requirements, the Court must be satisfied that the deceased intended the document to be her Will. In making such a decision, the Court may consider the following:
- the document itself;
- any evidence regarding how the document was executed; and
- any statements made by the deceased or evidence of the deceased’s testamentary intentions.
In order to fulfil these requirements, the Court must firstly satisfy itself that the online Will questionnaire was a “document” as defined in s21 of the Interpretation Act 1987 (NSW). Section 21 states “a document means any record of information and includes (a) anything on which there is writing …”. In Yazbek v Yazbek, it was held the combination of a Microsoft Word document on a computer and a printout constituted a “document” for the purposes of s8 of the Act. The term was also discussed in Estate of Robin Michael (deceased), Stanley J noted “These authorities exhibit a contemporary approach to recognition of electronic documents, such as the computer file in this case, constituting testamentary documents for the purposes of the Act, at least where evidence provides the necessary proof that the author of the electronic document is the testator and that the testator intended the document to be his will.” Slattery J was satisfied that the online questionnaire as completed by the deceased was “something from which images and writings can be reproduced with or without the aid of anything else. It can be, and has been, reproduced by printing a copy of the electronic file”. His Honour stated “for a document to operate as a will, it must have been intended by the will-maker to be her, or his, will”.
His Honour quoted Salter J’s statement in the Estate of Beech “in order to be a testamentary act, there must be a statement of the deceased’s wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on”. And also this in Estate of Masters, his Honour stated “a document in which a person says what that person intends shall be done with that person’s property upon death seems to me to be a document which embodies the testamentary intentions of that person”.
For peace of mind, consideration should be given to ensuring your Will is prepared and finalised using solicitors who practice in this area of law. Please contact Gillian Kirwan (a specialist in preparing Wills) at Carroll & O’Dea Lawyers on 02 8226 7321 should you wish to discuss this topic in greater detail.