The pitfalls and limitations of DYI online Wills
The recent New South Wales Supreme court case of Maggie Riman relating to the estate of Rita Riman, handed down on 1 July 2022, is a stark reminder to both clients and advisers of the pitfalls of low-cost online Wills.
The recent New South Wales Supreme court case of Maggie Riman relating to the estate of Rita Riman, handed down on 1 July 2022, is a stark reminder to both clients and advisers of the pitfalls of low-cost online Wills, and why estate planning should be a facilitated process, managed by a client’s trusted advisor, either their accountant or financial planner, supported by a qualified lawyer.
The case is also an example of the significant legal costs that can be incurred when a online will is not prepared correctly or, in this case, printed and signed.
The Facts
Mrs Rita Riman (the deceased) died by suicide on 14 June 2021, leaving property in New South Wales. At the time of her death, the deceased was single, with no children. She had not made a previous will, nor communicated her testamentary wishes to any other person.
The issue in the case was whether the deceased completion of an online questionnaire on the day of her death, which did not generate a will document, was a valid testamentary document as an informal will. The online questionnaire reflected an intention by the deceased to leave the bulk of her estate, worth $872,000 to her sister, Maggie Riman. If it was invalid as a informal will, under the rules of intestacy, her estate would pass to her surviving parents, with whom she had little contact.
Based on the evidence provided in the case, the deceased completed an online questionnaire about her testamentary intentions before taking her own life. For reasons that are not known, the deceased chose not to print the will. Based on an unsent text message to her sister, the deceased considered that the information that she had completed in the questionnaire was all that was required and a sufficient record of her intentions.
The deceased sister sought to obtain a grant of probate based on the completed online questionnaire and the subsequently created unsigned will that the online Will provider had created after the deceased death.
The court had to decide whether the completed questionnaire was an informal will, which accurately reflected the deceased testamentary wishes and that she had the required testamentary capacity, particularly when she had taken her life by suicide. Based on all of the external evidence and various text messages and communications admitted into evidence, the court allowed the online questionnaire to be treated as a will. The court may not have accepted the completed online questionnaire without this external evidence.
Despite a positive outcome, the case reflects the risks to people who use online questionnaires and who are self-guided. Even though the deceased had intended to take her own life, she had wrongly assumed that the completion of the questionnaire was sufficient to reflect her testamentary wishes without following through to the next step of creating the will document and having it printed and properly signed.
The case involved the assistance of the Attorney-General and his legal counsel as “Amicus Curiae”, as well as solicitors and barristers for the sister as executor. It likely that total legal costs that were ordered to come out of the estate would have been $200,000 or more, or one-quarter of the value of the estate!
The case is also a simple reminder to advisers and clients that the cost of a properly considered and documented estate plan is a small price to pay to avoid unnecessary legal costs, family conflict as well as the risk of the estate not passing in the manner intended.