The formal processes of will creation and enforcement of a testator's wishes have primarily remained the same for centuries. However, it is no longer the case today since technological advances run the show, and electronic wills are testament. Nowadays, you can create, sign, witness and store wills online. That said, many people don't understand E-wills, given that it is a relatively new phenomenon. This article highlights critical facts about electronic wills.
E-Wills Are Not a One-Size-Fits-All — E-wills are categorised into three categories. First, offline e-wills are typed on an electronic device, and a testator must sign it by typing their name into the document. Notably, offline e-wills are stored in a hard drive and are never printed. Second, an online e-will brings a private party into the will creation process. For instance, you can log into your social media account and post or record a video you intend to be your final will. Notably, online wills are stored in a third party's servers, guaranteeing their security. Lastly, qualified custodian e-wills require a testator to fill out a basic form provided by a third-party service provider. Service providers charge a fee for using their streamlined will creation service. Access to witness is made available via webcam services. Upon completion, witnessing and authentication, a service provider stores the will in their server.
Testator Intention is Paramount — The law is clear on what constitutes a valid will, which can pose a problem for e-wills. For instance, the law requires that a will be in writing, and there should be at least two impartial witnesses to witness its signing. Additionally, the witnesses must sign the document confirming that a testator intended it to be their final will. However, it can be a problem if the testator creates a video will and stores it on their computer. Since impartial parties might not witness the creation and signing of a video will, one might deem it invalid. However, a law court can still issue a grant of probate if it determines that a testator intended a video will to be their final.
Traditional Wills Can Support E-wills — Waiting until the last minute to make a will is a common mistake that people make. However, the emergence of e-wills has made things a bit easier since a testator can combine both types. It is essential because there are times when an e-will might not satisfy some of the requirements of a valid will. In such instances, the presence of a will document, although incomplete, can waive the execution of formalities characteristic of traditional paper wills. That said, a court must determine whether a testator intended to make the incomplete paper will and e-will their final and valid versions.
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24 January 2022
I love watching legal dramas from all different countries. I often call up my friend who is a lawyer to ask her about whether the cases I have seen on the latest drama are realistic or if they wouldn't happen that way in Australia. It's so interesting to me to see the changes that they make to make the stories flow more convincingly as well as the differences between the law in Australian compared to other countries. This blog is for other fans of legal dramas like me and has some tips on the best places to get real legal advice (hint, it's not on the TV!).