Can an ‘informal’ online Will be valid? Lessons from Maggie Riman (Estate of Rita Riman) [2022]

Generally speaking, for a Will to be accepted as legally valid, it unsurprisingly requires that the legal formalities of the relevant jurisdiction are wholly adhered to. Nevertheless, sometimes a Will that does not meet these requirements, referred to as an 'informal Will', can be accepted as valid.

However, there remains a good deal of uncertainty regarding informal Wills, especially as the law increasingly encounters the digital age. An example of a recent close encounter of a particular kind is featured in the illustrated case below. This case, the first of its type to come before any Supreme Court in Australia, involved personal tragedy, an informal Will and the use of an online Will-writing platform.

The formal requirements of a valid Will

The formal requirements for making a valid Will in New South Wales are set out in section 6 of the Succession Act 2006. This section requires a Will to:

• be in writing and signed by the Will-maker or another person at their direction;
• have two or more of the witnesses that have signed the Will in the presence of the Will-maker.

Exceptions to the rules about the requirements for a valid Will

In NSW, section 8 of the Succession Act 2006 provides a safeguard for those persons who had set out their wishes but die suddenly or unexpectedly before they legally formalised matters.

Under this section, the Court can order that a document is a valid Will, despite not being executed properly, if it represents the deceased's testamentary intentions. This means that 'informal' documents that have not been signed or witnessed in line with the formal requirements can still be recognised as valid Will and admitted to probate.

In contemplating an exception to the rules, the Court will consider matters such as the document in question, the evidence as to how the document was executed, any statements made by the deceased regarding their testamentary intentions and any other matters considered relevant.

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

 Rita Riman took her own life at age 42. Shortly before doing so, she had completed an online questionnaire with Safewill, an online Will-writing platform, as part of the process towards producing a Will. The questions included information such as her personal details, her assets and liabilities, who would who receive bequeaths and who should be her Executor. This information would form the basis of her Will. Following completion of the questionnaire, she paid for a Will.

On the day of her suicide, 14 June 2021, Rita emailed her lawyers, telling them she had 'drawn up and completed her will' and provided them with a link to Safewill giving access to what she referred to as her 'online Will'.

Rita Riman had never been married and had no current partner or children. Her parents, her younger sister (Maggie), and her brother survived her. Her estate was estimated at $870000 approximately. This largely consisted of her superannuation. Most of the estate was left to her sister. This proposed disposition was not disputed and was accepted by the family members even though the online Will had been rejected by the Court; intestacy rules would have produced a very different outcome.

Rita's sister sought a declaration that the 'online Will' contained the testamentary intentions of her sister and requested an order for probate be granted to her.

In the event the Court exercised its power under section 8 of the Succession Act. It found that the Will should be considered as valid despite its shortcomings, and given the evidence provided about her testamentary intentions, probate was to be granted to the sister.

 The Court referenced several factors in coming to this decision:

• the terms of the Will had been completed, which were consistent with the understanding that her family had of Rita's testamentary intentions;
• the circumstances surrounding the making of the Will, which included the recentness of  preparing the Will to Rita going on to take her life;
• the communication Rita had with her lawyer with the reference in her submission to 'my Will';
• a communication Rita had with Safewill in which she expressed a wish for the online Will to be binding;
• a text message Rita prepared but did not send to her sister referring to 'the link to my Will I had made this morning'.

The judge was also satisfied that the deceased had the testamentary capacity to make the Will along with the intention of the online Will to be her last Will and testament.

Is an online Will valid?

The Court determined that the online Will was valid. The judgment confirms that an online submission for a Will can be binding even if it is unsigned. However, this does not mean that the same conclusion would be reached for all informal Wills drafted this way. Each application will be determined on its own facts. Indeed, the judge commented that if it were not for the statements made by the deceased, the application might not have succeeded.

In confirming that a Will can be validly written online, the Court recognised technology's increasing role in modern life. The judge commented that 'digital communication has become an essential part of the social and economic fabric of society'. Nevertheless, it remains important that any such document is finalised and executed properly to ensure its legal validity and not risk the Will being set aside or having to be argued over in the Supreme Court.

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