The rise of online wills has made estate planning more accessible across Australia. However, each state and territory has its own legal requirements for valid wills, which means a digital will that works in one jurisdiction may not meet the formalities in another. Understanding these state-specific rules is essential to ensure your online will is legally enforceable.
What Is an Online (Digital) Will?
An online will, also called a digital will, is a legal document created using an online platform rather than through a solicitor. These platforms guide you through listing:
- Personal information
- Assets and liabilities
- Beneficiaries and their entitlements
- Executors and guardians
- Special instructions or bequests
To be legally recognised in Australia, the will must generally be printed, signed by the testator, and witnessed by two eligible witnesses.
How Online Wills Work in Australia
The typical process for creating an online will includes:
- Completing an Online Questionnaire: Provide detailed information about your estate, beneficiaries, and executors.
- Generating the Will Document: The platform produces a tailored legal document based on your inputs.
- Signing and Witnessing: The will must be signed in front of two witnesses who are not beneficiaries.
- Safe Storage: Keep the will secure and inform your executor of its location.
Proper execution ensures that the will is legally valid in the relevant state or territory.
Legal Validity of Digital Wills Under Australian Law
Online wills are legally valid if they comply with state-specific succession laws. General requirements include:
- Must be in writing
- Signed by the testator
- Witnessed by two eligible witnesses at the same time
- Witnesses cannot be beneficiaries or their spouses
Failing to follow these formalities may lead to a will being contested or invalidated.
State-by-State Considerations
Australia’s states and territories have subtle differences in succession laws that affect online wills:
New South Wales (NSW)
- The Succession Act 2006 requires two witnesses for a valid will.
- Online wills must be printed and physically signed to be legally recognised.
Victoria (VIC)
- The Wills Act 1997 allows for electronic preparation but still requires signing and witnessing.
- Victoria also permits provisions for informal wills in some emergency situations.
Queensland (QLD)
- Governed by the Succession Act 1981.
- Online wills are valid if signed in accordance with witnessing rules.
- Queensland allows some exceptions for testators in remote locations or emergencies.
Western Australia (WA)
- The Wills Act 1970 requires two witnesses for a valid will.
- Electronic drafting is acceptable, but physical signing is mandatory.
South Australia (SA)
- The Wills Act 1936 enforces strict signing and witnessing rules.
- Digital wills are valid if these formalities are met.
Tasmania (TAS)
- The Wills Act 2008 requires two witnesses and allows electronic preparation with physical execution.
Australian Capital Territory (ACT)
- The Wills Act 1968 requires proper witnessing; online preparation is acceptable if execution rules are followed.
Northern Territory (NT)
- Governed by the Wills Act 2000.
- Online wills are valid if signing and witnessing rules are strictly followed.
Risks and Limitations of Online Wills
- Execution Errors: Incorrect signing or witnessing may invalidate the will.
- Ambiguities: Generic clauses may not reflect your intentions clearly.
- Limited Legal Advice: Online platforms cannot advise on complex estates, trusts, or blended families.
- State-Specific Issues: Ignoring local succession laws can lead to probate challenges.
Being aware of these risks helps you make informed decisions when using online wills.
Differences Between Online Wills and Lawyer-Drafted Wills
Lawyer-drafted wills provide:
- Tailored advice for complex estates
- Guidance on trusts, guardianship, and business succession
- Clear clauses that minimise disputes
- Compliance with state-specific succession laws
Online wills are convenient and cost-effective but better suited for simple estates.
Who Should and Shouldn’t Use Online Wills
Suitable for:
- Individuals with straightforward estates
- Clear beneficiary arrangements
- Minimal risk of disputes
Not suitable for:
- Complex estates with trusts, businesses, or blended families
- High-value or international assets
- Estates requiring special legal clauses
Common Legal Mistakes With Online Wills
- Improper signing or witnessing
- Failing to revoke previous wills
- Using vague clauses
- Not appointing appropriate executors or guardians
- Failing to update the will after major life events
These mistakes can compromise the will’s enforceability across different states.
Practical Example
Anna lives in NSW and creates an online will. She prints, signs, and witnesses it properly, ensuring compliance with NSW law. Her friend Ben, living in Victoria, creates a similar online will but misses the proper witnessing step. Ben’s will could be contested in court, demonstrating the importance of state-specific compliance.
Final Thoughts and Disclaimer
Online wills can simplify estate planning, but understanding state-specific legal requirements is crucial. Ensure proper signing, witnessing, and storage to protect your estate and beneficiaries. For complex situations, seek professional legal advice tailored to your state.
This article provides general information only and does not constitute legal advice. Consult a qualified Australian estate planning professional for personalised guidance.
FAQs
Are online wills valid across all Australian states?
Yes, if they comply with state-specific succession laws, including signing and witnessing requirements. Each state may have unique formalities, so it’s important to follow local rules.
Can I use an online will if I move interstate?
If you move, you may need to review your will to ensure compliance with the new state’s laws. Minor differences in witnessing or execution rules can affect validity.
What common mistakes do Australians make with online wills?
Mistakes include improper signing or witnessing, vague clauses, failing to revoke previous wills, and not updating the will after major life changes.
Who should avoid online wills?
Complex estates, blended families, business owners, and individuals with trusts or high-value assets should seek professional legal advice rather than relying on online wills.
How can I ensure my online will is legally enforceable?
Follow all execution formalities, including proper signing and witnessing, store the will securely, and update it after significant life events to maintain compliance with local laws.