Hey Siri: what are electronic Wills?

In the age of COVID-19 we have seen social media flourish as well as facetime and zoom become more popular than interacting in person. On top of this, COVID-19 has also forced many industries to ‘communicate, transact and learn to operate online’ (1) and it has left many of us wondering, ‘well, what other life tasks could be made easier and more time efficient by using an online platform?’

The answer to that question, is a Will.

Before the pandemic, the short answer to the question you asked Siri (as the title of this blog), was ‘No’, you can’t sign or have your Will witnessed electronically. But one thing we can be thankful for, that has come out of this crazy whirlwind of a year, is the rapid advances in the use of technology. It has forced practitioners around the world to prepare themselves for the introduction of electronic Wills and remote witnesses, using audio-visual links.

As our job at Wills & Estates is to make your life a heck of a lot easier when it comes to Wills and estate planning, we will set out what is going on with electronic Wills and signatures as simply as we can in this article.

How are Wills created currently?

Historically, making a Will has been a very strict process. Deviating from these strict requirements and steps, even slightly, resulted in the Will being deemed invalid or extra work needing to be done, to prove its validity. This ultimately wasting time and money. Over time, some of these stringent requirements have eased slightly, yet most remain. In Australia, we follow the English model for creating a Will and Testament, whereby the Will is only valid if:

  1. The person is over 18

  2. Makes the Will voluntarily

  3. The Will is in writing

  4. The person has testamentary capacity to make the Will

On top of this:

  1. The Will-maker must sign the document with at least two witnesses; and

  2. The Will-maker must have these two witnesses sign the document

Tedious, right? And in addition to this, COVID-19 restrictions saw that a person was not allowed to have more than one person not related to them in the same room at the same time which made the traditional approach to Will- drafting and witnessing extremely difficult.

But with the rise and introduction of electronic signatures over the last decade or two, and with ‘all of our banking, insurance and health records and even professional certifications being carried out electronically (2) it is no surprise that you, me and John Smith down the road are wondering why we can’t yet officially complete our Wills and testamentary intentions using various technological means.

People are still divided across jurisdictions about what a technological Will and signing option would mean for those traditional documents that must be signed with a pen and paper and have a physical witness present. In recent years we have seen a number of cases across Australia where successful changes have been made which leaves us wondering why an electronic signature is so contentious.

Changes in the traditional approach to creating a Will

Do we have a formal definition of an ‘electronic Will’?

Despite these changes highlighted above, and the advancements in technology here in Australia and across the world thanks to COVID-19, a universally accepted definition of an ‘electronic Will’ has not been created. It is often said that an ‘electronic Will is a Will signed by the Will-maker and witnesses electronically using digital signatures’, subject to the applicable legislation.

Despite not agreeing on a universal definition of electronic Will, many academics, judges and practitioners do agree that electronic Wills are desirable, especially in consideration that COVID-19 self-isolation measures make it inappropriate and dangerous in some cases to comply with ‘formal witnessing requirements. (5)

Pros and Cons of electronic Wills

Electronic Wills are not yet formally recognised but are bound to eventually become a reality and likely the new standard. COVID-19 has made them more ‘relevant than ever ( 7) and it is up to practitioners to adapt and get on board what will inevitably be the normal practice in a few years’ time. The transition will not be quick or easy for policy makers and practitioners, but it will surely benefit the wider population and citizens from all over the world in many ways.

Right, so we’ve summed up our answer with a long-winded article. All you really wanted was a yes or no result from your google search, but as you can see it is a little more complex than one perhaps expects. Thus, we suggest that if you are actually looking at getting your Will sorted today, tomorrow or in the future, contact us at Wills & Estates and we will handle all the nitty gritty legal aspects you can’t be bothered dealing with, whilst doing it all… online.

Don't wait until it's too late, contact us today!

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References (1) Kimberley Martin TEP, ‘Technology and Wills – The Dawn of a New Era’ (2019) STEP, 1-75 (webpage) (2) Ibid.

(3) Ibid.

(4) [2016] 2 Qd R 160 at [62]. Qld

(5) Martin (n 1).

(6) Ibid.

(7) Ibid.