Queensland's Succession Act sets out who inherits the estate of a person who dies without a valid will, highlighting the importance of having a valid will to ensure your wishes are carried out and the need to consider the potential benefits but also the clear risks involved with the emergence of electronic wills, say QUT legal experts.
- 'Electronic wills' rose to prominence during Covid 19 in response to deathbed need
- Jurisdictions around the world instituted various forms of legal e-wills provisions during the pandemic – some have been retained or revoked, others are under consideration
- Key problems include validating e-signatures, preventing undue influence and independent witnessing
An analysis of Queensland's approach to electronic wills (e-wills) was conducted by Associate Professor Kelly Purser and Professor Tina Cockburn, from QUT's Australian Centre for Health Law Research (ACHLR) in QUT's School of Law, alongside analyses by leading researchers in Canada, the United Kingdom and the United States who examined approaches to e-wills in their countries.
ACHLR director Professor Cockburn (picture left above) said electronic wills were quickly enabled in many jurisdictions around the world during the Covid 19 pandemic when the likelihood of imminent death and constraints of social distancing made an e-will the only way to make a legally valid will, a method that had been retained and refined in some countries.
"Our analysis highlighted the vulnerability of homemade wills to challenges as distinct from a professionally made will, whether traditional or electronic," Professor Cockburn said.
"The importance of having a valid will was highlighted by the pandemic and we found that homemade or DIY wills are the least 'safe' type of will as they can fail to meet the formal requirements necessary for a valid will.
"Increasing the availability of electronically made wills has the potential to make professional will-making more accessible for people who don't have easy access to legal professionals and reduce the reliance on homemade wills, which have proven risks.
"Significant evidence of risks associated with homemade wills include fraud and errors of various kinds leading to difficulty giving effect to the terms of the will or even enforcing its validity.
"DIY wills may be made with little or erroneous understanding or consideration of the will-maker's testamentary capacity, and/or the presence of undue influence, further opening the possibility of challenge to the will."
Co-author and ACHLR Planning for Healthy Ageing Program co-leader Associate Professor Kelly Purser (pictured right, above) said that during the peak of the Covid-19 pandemic Queenland introduced remote audio-visual witnessing of wills to fulfill the (traditionally physical) presence requirement for valid witnessing of a will in response to the increased risk of unexpected death and social distancing rules.
"Queensland has since ended their emergency 'e-will' provisions," Professor Purser said.
"A valid will has to meet certain (formal) legal requirements – formalities which include that it must be in writing, and the will-maker and at least two independent witnesses must sign the will in each other's presence to ensure the validity of the will.
"Given the different approaches internationally, the question persists as to the role of 'e-wills' including benefits and opportunities but also risks, an evaluation which calls for rigorous evidence to inform any law reform discussion."
Professor Purser said key formalities around fully electronic wills' signatures and witnesses and 'presence' of the people involved at the signing were still being worked out.
"Electronic signatures are essential for fully electronic wills but are obviously open to forgery as anyone could use an existing e-signature or type in the will-maker's name," she said.
"Only Canada's British Columbia's Wills, Estates and Succession Act (WESA) and the US's Uniform Electronic Wills Act have recognized electronic signatures as formally valid."
Professor Purser said the potential for e-wills to increase access to professionally made wills for people with mobility and/or health issues, or who live in areas outside metropolitan areas was part of the cost-benefit analysis.
"Issues with accessing reliable and cost-effective internet services and devices also exist in these area, while the costs associated with professionally made wills also needs to be considered in any attempt aimed at increasing access to valid will-making."
The research team comprised Associate Professor Kelly Purser and Professor Cockburn, from QUT (ACHLR); ACHLR Adjunct Professor Margaret Hall, from Simon Fraser University, British Columbia, Canada; ACHLR Adjunct Professor Bridget Crawford, from Pace University, New York, US; and Professor Rosie Harding, from the University of Birmingham, UK.
The study, 'Risks, benefits, opportunities and electronic formalities in the law or wills: a comparative approach', was published in the McGill Law Journal (Canada), with ACHLR Adjunct Professor Margaret Hall as lead author. The research team also made a submission to the Law Reform Commission (UK) Consultation Response: Wills 2023, led by Professor Rosie Harding (UK), which was cited several times in the recently released UK Law Reform Commission Report, Modernising Wills Law.
