An informal will is a document that expresses the testamentary intentions of its maker but does not meet the requirements of s6 of the Succession Act 2006 (NSW).
An application may be made under s 8 of the Act for the document to form the will of the deceased. Section 8 of the Act is in two parts, both of which must be established to provide that the document forms the deceased’s will.
Section 3, of the Act, provides that the definition of “document” has the same meaning that it is given by s 21 of the Interpretation Act 1987 (NSW) as any record of information, and includes—
- (a)anything on which there is writing, or
- (b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
- (c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
- (d)a map, plan, drawing or photograph.
The burden of proof is on the party seeking to rely upon s 8 and is to be satisfied on the balance of probabilities. The Court is required to take into account the nature of the action; the size of the estate; and the terms of the document sought to be propounded: s 140 Evidence Act 1995 (NSW).
The deceased completed an online will questionnaire that required the completion of seven fields. To use the platform, a customer must create an account on the company’s website, and answer various questions about how they wish to leave their estate. The customer is then asked for payment; the responses to the questions are then reviewed by the company.
The review is conducted to ensure that the customer has used the platform correctly; if they haven’t the customer is notified and allowed to edit the information or seek legal advice. Once the review occurs, the Will can be downloaded with explanatory material, including information about how to execute a Will.
The deceased completed the documents fields on 14 June 2021 – the Queen’s Birthday public holiday in NSW. As the questionnaire was completed on a public holiday, the document was not able to be reviewed until at least the next business day.
After completing the questionnaire, the deceased sent an email to the solicitor who had been acting for her since February 2020 concerning a possible compensation claim, stating that she had drawn up and completed a will. An unsent text message was found on her mobile phone that she did not have time to sign the will but hoped it would stick.
The deceased died by her own hand in the late afternoon, or early evening, of 14 June 2021, leaving property in New South Wales.
An application was made under s 8 of the Act for the online will to form the deceased’s will (Application by Maggie Riman (Estate of Rita Riman)  NSWSC 872). The Plaintiff also sought an order for a grant of Probate. Leave was granted to the Attorney General to appear as amicus curiae -who may advise the court on a point of law or a matter of practice.
“The hearing of an amicus curiae is entirely in the Court’s discretion… The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.”Levy v The State of Victoria (1997) 189 CLR 579 at 604-605
The Court was satisfied that the online will constituted a document under s 8. Having established that there is a document, the court was satisfied(at ) that the online will expressed the deceased’s testamentary intention because
- the deceased initiated the creation of the document;
- the terms of the document appeared rational;
- the document dealt with all of the deceased’s property;
- the deceased paid for the document;
- the relevant intention was formed very close to the deceased’s death (suggesting it was not a test run or a draft waiting for amendment);
- there was no one readily available to act as an attesting witness;
- the deceased could not sign the online questionnaire;
- and the email to her solicitor suggested she had formed the intention for the document to operate as her will.
The Court ordered that probate in solemn form of the Will dated 14 June 2021 be granted to the Plaintiff and that the Plaintiff’s costs be paid out of the estate of the deceased.