From banking to booking holidays, our lives have moved online. So, why should estate planning be stuck in the past? The COVID-19 pandemic pushed many aspects of our lives into the digital realm, and the traditionally paper-heavy world of wills and estates was no exception. This shift has sparked a nationwide conversation about electronic wills, or “e-wills,” and for Victorians, this isn’t just a hypothetical discussion—it’s the new reality.
In a recent interview on ABC’s Law Report, Dr Kelly Purser, a law expert from Queensland University of Technology, explored the evolving landscape of e-wills in Australia. Her insights shine a light on why Victoria is leading the charge and what this digital frontier means for your estate planning.
What Exactly is an E-Will, and is it Legal in Victoria?
An e-will is a will that is created, signed, and witnessed in a digital format. This could be a document typed on a laptop, signed with an electronic signature, and witnessed by people watching via a video call. While it sounds simple, the legal framework is complex.
Victoria stands alone as the only Australian state where e-wills are formally recognised under the Wills Act 1997. The legislation includes a “remote execution procedure,” which allows for wills to be signed and witnessed electronically over an audio-visual link. This makes Victoria a trailblazer, offering a level of flexibility not yet seen in other parts of the country.
Elsewhere in Australia, the laws are a mixed bag. New South Wales allows for electronic signatures, but its Wills Act isn’t as comprehensive as Victoria’s. In other states, the law is either silent or specifically excludes wills from electronic transactions. This legal patchwork makes it crucial to get advice tailored to your specific location.
The Double-Edged Sword: Risks and Rewards of E-Wills
While the convenience of creating a will from your living room is a clear advantage, it’s essential to understand the potential downsides. Dr Purser highlighted several key concerns for anyone in Victoria considering an e-will:
- Fraud and Forgery: An electronic signature can be harder to verify than a traditional “wet-ink” one, potentially creating opportunities for fraud.
- Undue Influence and Capacity: It can be challenging for a lawyer to assess if a will-maker has the mental capacity to sign a will or if they are being pressured by someone off-camera. Dr Purser mentioned a Canadian case where a will-maker was clearly looking off-screen for answers, raising suspicions of coercion. An experienced estate planning solicitor in Victoria will be alert to these risks and take steps to mitigate them during the online will witnessing process.
- Storage and Security: What happens if your e-will is accidentally deleted, your laptop is lost, or the technology becomes obsolete? There are also significant privacy concerns around who has access to the document and any passwords.
Despite these risks, the benefits are undeniable, especially for those with mobility issues or living in remote areas. The ability to create a valid will without leaving home is a game-changer. The key is to proceed with caution and with the right legal guidance.
Why a DIY Will Might Cost You More in the Long Run
The rise of DIY will kits and online templates has made creating a will seem easier than ever. However, as Dr Purser noted, this convenience can be deceptive. A poorly drafted will, whether digital or on paper, can leave your loved ones with a legacy of stress and costly court battles.
When you work with a will lawyer in Melbourne, you’re not just buying a document; you’re investing in peace of mind. A solicitor will:
- Ensure all legal formalities are met, so your will is valid.
- Use precise language to ensure your wishes are clear and unambiguous.
- Help you anticipate and address any potential challenges to your will.
A DIY will might seem cheaper now, but it could cost your family far more in legal fees and emotional turmoil down the track.
The “Dispensing Power”: A Legal Safety Net
What if a will doesn’t tick all the legal boxes? The courts in Victoria have a “dispensing power,” which allows them to validate an informal document if they are satisfied it reflects the deceased person’s final wishes. This power has been used to recognise everything from unsent text messages to notes on an iPad as valid wills.
However, this is a safety net, not a substitute for a properly drafted will. Relying on the dispensing power is a gamble that can lead to uncertainty and expensive court proceedings for your family.
The Future is Digital, But Get Advice Today
Victoria is at the forefront of the e-will revolution, but the law is still evolving. As Dr Purser emphasised, it’s crucial that any future changes are based on solid evidence to protect people from issues like elder abuse and undue influence.
If you’re considering an electronic will in Victoria, seeking professional advice is non-negotiable. A will lawyer in Melbourne can guide you through the legal complexities and ensure your will is secure, valid, and a true reflection of your wishes.
At Hayton Kosky, our experienced estate planning solicitors are here to provide the expert advice you need to protect your digital legacy and give your family peace of mind.
Navigating the new world of e-wills is exciting, but at Hayton Kosky, we also believe in the unwavering security of established practices. We complete the final signing of all wills in a face-to-face meeting, with traditional wet signatures and two witnesses present. It’s a time-honoured approach that eliminates the digital risks discussed and provides our clients with ultimate confidence.