Education on will making should start in schools and be taught hand in hand with financial literacy according to QUT researchers who also examine the growing role of 'smart' technologies in the process.
Associate Professor Tina Cockburn, Co-Director of the Australian Centre for Health Law Research (ACHLR ) is a co-author of A Behavioural Economics Analysis of Will Making Preferences: When to Begin and Who Should Have the Most Input?
To be published by the Minnesota Journal of International Law, it's the result of a joint study with QUT's Centre for Behavioural Economics, Society and Technology (BEST).
"COVID-19 has highlighted the stark reality of the fragility of the human condition and the inevitability of death. It also focused attention on the need to plan for the effective transfer of property on death, predominantly by making a valid will," said Professor Cockburn.
"There are many adverse legal, social and economic implications of dying without a valid will. The assets of the deceased person, for example, are divided according to intestacy rules. While these rules are intended to approximate the wishes of the average person, they have arguably not kept pace with cultural norms, societal changes, and evolving concepts of 'family'.
"To make a valid will it is generally necessary to comply with formal requirements, including that the will must be in writing, signed and witnessed by two independent witnesses.
"COVID-related isolation and social distancing have meant that the physical presence requirement for making a valid will can be difficult, if not impossible, to fulfill. This resulted in emergency responses being introduced in NSW, the ACT, Victoria, and Queensland to allow previously untested remote audio-visual witnessing of wills via online platforms.
"There is now a pressing need to critically examine whether these emergency measures should become permanent."
Co-author behavioural economist Dr Stephen Whyte, a Research Fellow and Deputy Director of the BEST Centre, said the study filled a gap in providing evidence about when and how Australians go about will-making.
"We found that members of the legal profession tend to prefer the execution of a will at a much younger age than members of the public do – 29 years of aged compared to 47," said Dr Whyte.
"There is very little behavioural research about will making behaviour in Australia. There is an urgent need to understand preferences and attitudes so policy makers and law reformers can determine whether there is a need to remove as many real and perceived obstacles to valid will making as possible."
"We can't just assume that access is the issue and technology is the solution."
Co-author Associate Professor Kelly Purser, who co-leads the Planning for Healthy Ageing Program situated within ACHLR, said the research demonstrated that people who already have engaged in the will-making process tend to desire far greater levels of input from estate planning lawyers than those who have never made a will.
"It also revealed that among both groups, preferences on these matters appear to be largely unaffected by any stated benefits or drawbacks of remotely executed wills," Professor Purser said.
"The potential role of 'technology' in will making, such as online witnessing of wills, is indeed a significant potential reform of the law in Australia, which requires wide consultation with relevant stakeholders, drawing on a rigorous evidence-base.
"There are arguments both for and against the use of various technologies in will making, but it is misleading to presume the adoption of technology will itself facilitate valid will making.
"There has been a growth in companies offering semi-customised wills created by 'smart' technology while the U.S. Uniform Law Commission has fast-tracked the development of model legislation that could limit the influence of for-profit companies in this space."
Dr Whyte said the research findings can also have a role in shaping effective future design, development, and delivery of community education, including school curriculum development, and public advertising by governments and legal professionals providing will making services.
The other authors of the paper are Dr Ho Fai Chan, QUT Research Fellow, Professor Uwe Dulleck Director of QUT's Centre for Behavioural Economics, Society and Technology (BEST Centre), and Adjunct Professor Bridget Crawford from the Elisabeth Haub School of Law at Pace University in New York.
Read the full study online: A Behavioural Economics Analysis of Will Making Preferences: When to Begin and Who Should Have the Most Input?
Main image: Top row - Associate Professor Kelly Purser, Dr Stephen Whyte and Professor Tina Cockburn. Bottom row - Professor Uwe Dulleck, Dr Ho Fai Chan, and Adjunct Professor Bridget Crawford
