The deceased died tragically by her own hand in 2021. By law, certain formalities are required to make a valid Will. Firstly, a Will must be in writing. Secondly, a Will must be signed. Thirdly, the person making the Will needs their signature to be witnessed by two other people who also need to sign the Will. If a person dies without a valid Will the intestacy rules under the Succession Act 2006 (NSW) determine how the deceased person’s assets will be distributed. However, a Court may dispense with the formal requirements to make a Will and uphold a document as a Will if the Court is satisfied that the deceased intended the document to form his/her Will (the dispensing power).  The deceased’s sister sought to invoke the Court’s dispensing power to admit to probate what was described as “the online Will”. The estate was less than $1 million.  When she died, the deceased was survived by her parents and two siblings.

“[T]he online Will” consisted of an “online Will questionnaire” completed by the deceased through an online Will writing platform. Due to the questionnaire being completed by the deceased on a public holiday prior to her death, it was not reviewed until the next business day. As a consequence no Will was generated or signed by the deceased before she died. On the same day as completing the questionnaire, the deceased sent an email to her lawyer who had been acting for her in relation to a possible compensation claim which said: “Just letting you know I have drawn up and completed a Will” and she included what she believed to be a link to the online Will, as well as the name and contact details of her nominated executrix being her sister. Additionally the deceased left a text on her mobile phone to her sister, which remained unsent. In part the text stated, “I have emailed my lawyer…with the link to my Will I made this morning. I didn’t have time to wait for it to be signed, but I am hoping it will stick”.

In reviewing the dispensing power, the Court acknowledged the “clear intention of [the law] is to allow the Court to give effect to a will-maker’s intention, despite the fact that a will has not been validly executed…Each case must be decided on its own merits, taking into account all of the circumstances”.  In concluding “the online Will” should be considered a Will because the Court was satisfied on the evidence that the deceased intended it to form her Will, it is important to note that whilst the Court recognised that “digital communication has become an essential part of the social and economic fabric of society” it also noted “this application has been determined on its own facts. But for the statements, in writing, made by the deceased, about the online Will, the Plaintiff’s claim may not have succeeded”.

Whilst ultimately the application was successful, it was not without associated difficulty, delay and uncertainty for the family of the deceased coupled with considerable legal costs much of which could have been avoided if the deceased had consulted her lawyer to make a Will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.

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