Online Will services are increasingly popular in Australia. They are often promoted as quick, easy, legally binding and affordable alternatives to using an estate planning lawyer.
But is an online Will suitable for your circumstances?
Is there really such a thing as a “simple Will”?
We often hear people say, “I only need a simple Will. I do not own very much, and it is straightforward who I want to leave everything to”.
In practice, a person’s estate planning circumstances are often more complicated than they initially appear. The value of an estate may include more than the balance of a bank account or the equity in a home. It may also be necessary to consider:
– superannuation and any binding or non-binding death benefit nominations;
– life insurance;
– jointly owned property;
– interests in companies, partnerships and trusts;
– loans made to family members;
– digital or overseas assets;
– previous relationships and blended families;
– beneficiaries with disabilities, addictions or financial difficulties; and
– potential family provision claims.
Some assets may not form part of an estate at all. For example, property owned as joint tenants will usually pass directly to the surviving owner rather than under the Will.
A document may therefore appear simple while failing to address the matters that will ultimately determine how a person’s wealth will actually be distributed.
What should a properly prepared Will achieve?
A carefully prepared Will should do more than name beneficiaries. Depending on the circumstances, it may:
– appoint suitable executors;
– provide practical powers and directions to executors;
– ensure that gifts are legally effective and practically capable of being carried out;
– minimise ambiguity and the risk of disputes;
– provide for substitute beneficiaries;
– provide appropriate protection for vulnerable beneficiaries;
– reduce exposure to creditors, relationship breakdowns or financial mismanagement;
– take account of potential family provision obligations;
– coordinate with superannuation, trusts, companies and jointly owned assets; and
– support an orderly and, where possible, tax-effective transfer of wealth.
A Will should form part of a broader estate plan rather than be treated as an isolated document.
The limitations of an online questionnaire
Most online Will platforms ask users to work through a standard questionnaire. The answers are then inserted into a pre-prepared template.
This process may be suitable for producing a document, but it is not necessarily capable of identifying whether the user has misunderstood a question, overlooked an asset, or failed to appreciate the legal effect of their instructions.
A template cannot readily explore issues such as:
– whether a former spouse or estranged child may have a potential claim;
– whether a proposed gift is actually owned by the Will-maker;
– whether an executor is suitable, willing and able to act;
– whether testamentary trusts should be considered;
– whether a beneficiary is at risk of bankruptcy or family law proceedings;
– whether the Will-maker has obligations to provide for a particular family member;
– whether jointly owned property will pass outside the estate;
– whether superannuation nominations are valid and consistent with the Will; or
– whether there are concerns about capacity or undue influence.
These matters require a conversation. They often involve follow-up questions and advice tailored to the individual’s family, assets and intentions.
Many online Will providers also state that they are technology platforms rather than law firms and do not provide legal, financial or taxation advice. That distinction is significant. Producing a document is not the same as advising whether it is appropriate.
Even where an online provider advertises that a lawyer “reviews” an online Will, the scope of that review should be examined carefully. A procedural review may confirm that information has been entered into the relevant fields, without considering whether the proposed gifts are effective, whether the Will-maker has family provision obligations, or how the Will interacts with superannuation, trusts, companies, and ownership structures.
Errors in execution can affect intended beneficiaries
In Hill v Van Erp (1997) 188 CLR 159, the intended beneficiary’s husband witnessed the Will, causing the gift to fail under the legislation then applying.
The case shows how a seemingly minor signing error can defeat the Will-maker’s intentions and lead to litigation.
In Badenach v Calvert [2016] HCA 18, the High Court considered the scope of a solicitor’s duty when preparing a Will. Although the broader duty alleged was rejected, the decision highlights the importance of defining the solicitor’s role, making appropriate inquiries and giving relevant advice.
What happens if an online Will is invalid or ineffective?
Possible consequences include:
– an earlier Will being admitted to probate, even though it no longer reflects the deceased’s wishes;
– the estate being distributed under the rules of intestacy;
– gifts failing because the asset was not owned by the deceased or passed outside the estate;
– uncertainty about the identity of beneficiaries or the meaning of particular clauses;
– an application to the Supreme Court to validate an informal Will;
– competing probate applications involving different documents;
– family provision proceedings;
– disputes about testamentary capacity, undue influence or knowledge and approval;
– delays in administering the estate; and
– substantial legal costs.
The financial cost may only be part of the problem. Estate disputes frequently occur while family members are grieving and can permanently damage relationships.
What does an estate planning lawyer do?
When preparing a Will, an experienced estate planning lawyer should obtain sufficient information to understand:
– the Will-maker’s family and personal relationships;
– the nature and ownership of assets;
– liabilities;
– superannuation and insurance arrangements;
– any companies, partnerships and trusts;
– previous Wills, family law orders or financial agreements;
– potential family provision risks;
– the suitability of proposed executors and trustees; and
– the Will-maker’s objectives and reasons for their decisions.
The lawyer can then recommend a strategy tailored to those circumstances, prepare the necessary documents and supervise their proper execution.
Depending on the client’s needs, the estate plan may also include:
– an enduring power of attorney;
– an advance health directive;
– superannuation death benefit nominations;
– testamentary trusts;
– succession arrangements for businesses or trusts; and
– advice about jointly owned and non-estate assets.
Is an online Will worth the shortcut?
An online Will may produce a document quickly. What it cannot necessarily provide is a proper understanding of your circumstances, tailored advice about the legal consequences of your decisions or a reliable record of the process by which the Will was made.
The real question is not whether an online Will is cheaper.
The question is whether it will achieve what you intend when your family needs to rely on it and when you are no longer available to explain your reasoning and intentions.
A modest investment in professional estate planning now may prevent uncertainty, delay and substantial expense later.
Need assistance with your Will or estate plan?
The experienced team at Miller Sockhill Lawyers can assist with preparing or reviewing your Will and ensuring that your broader estate planning arrangements reflect your circumstances and intentions.
Please contact Miller Sockhill Lawyers on (07) 5444 4750 to arrange an appointment.
This article is intended to provide general information only and does not constitute legal, financial or taxation advice. The relevant law and its application depend on the circumstances of each matter. You should obtain advice tailored to your individual circumstances.