Incomplete online will valid

The NSW Supreme Court recently held that an online will questionnaire constituted a valid will of a deceased.

This is a sad tale, where the deceased was relatively young. She had suffered from some form of psychological trauma when she was in her 20s-30s and significant anxiety for the rest of her life. Ultimately the deceased took her own life.

On the day she died, she had created an account and completed a questionnaire on the online will writing platform known as ‘Safewill’.

The way the platform worked was that customers only had access to the questionnaire after they had created an account. After completion of the questionnaire, they had to make the payment before the questionnaire was submitted for review by Safewill. It was only after the review (procedural) that a will was produced, and then emailed to the customer to be signed and witnessed.

However, in this case, the deceased only completed the questionnaire and made the payment. The questionnaire was not reviewed by Safewill as it was a public holiday. A will was never prepared using her answers from the questionnaire, as Safewill became aware of her death.

There was clear evidence that the deceased intended a document based on the instructions in the questionnaire to constitute her final will. Having clearly made a decision to end her life that day, following completion of the questionnaire she contacted Safewill via their online chat forum. The deceased stated that once she had paid, she wanted the document she had completed to be legally binding. The response indicated that the will needed to be signed by the deceased and two witnesses in order to be legally binding. The deceased asked if it could be expedited but was informed that the earliest was likely to be the following day due to it being a public holiday. The response asked whether that would be too late? And the deceased replied, ‘a little.’

Obviously intending the questionnaire (or at least her responses) to constitute a testamentary document, the deceased also took the extraordinary step of emailing her solicitor (who acted for her in respect of a compensation matter) with a link to the Safewill website. She indicated to him that she had completed a will.

Further, an unsent text message to her executor was found on the deceased’s phone after her death, that aside from providing details such as password and pin’s, the deceased stated that she had prepared a will via Safewill and indicated she had not signed it as she was not prepared to ‘wait around’. She also stated ‘I’m hoping it will stick’.

It is clear in this case that the deceased intended the document created as a result of her responding to the will questionnaire constituted her testamentary intentions.

The Court has the power to review informal testamentary documents and issue a grant of letters of administration in respect of them, only if the Court is satisfied the informal document constituted their final will. Firstly, the informal document must be a document (which is broadly defined). The Court was satisfied that the responses to the questionnaire were able to be recorded in a document.

Secondly, the Court needed to be satisfied that the deceased intended the informal document to be a will. It is not enough that the informal document was instructions for a will. The Court needs to be satisfied that the deceased intended that particular document to be their will.

In the past, the Court has held a document found on a computer with the file name ‘my will’ a valid will. However, a draft will, with the word draft on the will, was held by the Court not to constitute a will but only instructions for a will.

In this matter, Hallen J was satisfied that the deceased intended the questionnaire to be her will. She referred to it as her will to both her solicitor and executor. In both the unsent text message to the nominated executor, and her email to her solicitor, it is clear that the deceased’s intention was that she had prepared a will, not merely given instructions for a will.

In finding that the deceased believed the document to be her will, his Honour considered that:

  1. She had initiated the creation of the will via Safewill
  2. It was complete in its terms.
  3. The gift terms of the will appear rational and consistent with her family’s understanding of her testamentary priorities.
  4. The questionnaire dealt with all of the deceased’s property.
  5. She paid for the will indicating she had considered it was finalised and a completed document.
  6. Proximity of the relevant intention to the death (at her own hand). It confirmed that the document was intended to be final and not a draft or ‘test run’.
  7. It was part of a sequence of events she undertook in preparation for her death by her own hand.

The judge was at pains to identify that this was an unusual case and turned on its own facts. Had the deceased not written to her lawyer or prepared the unsent text message, then the case would likely have failed, and the deceased would have been found to have died without a will.

This case serves as a useful reminder that a will is not finalised until it has been properly executed.

Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872

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