Can a Will Be Signed Electronically in Emergency Situations?

If you’re dealing with an end-of-life or urgent estate circumstance — where time is short and the pressure is high — it’s understandable in our modern digital world to wonder, can a Will be signed electronically in emergency situations?

Our minds naturally consider the benefits of utilising time-saving 21st-century tech — can I do it by email? Ask AI to write something? Record a Will on a smartphone? Or use an e-signature platform?

These are all perfectly reasonable questions. But, in New South Wales, the rules around how a Will is created, signed, and witnessed are seriously strict — even for Emergency Wills.

If you get it wrong, the Last Will and Testament might not be worth the paper it’s written on (or the phone it’s recorded on) — and, it may cost you or your loved ones thousands of dollars in legal fees further down the line.

What Does NSW Law Say About Electronic Wills?

It’s complicated. Under the Electronic Transactions Act 2000 (NSW), in the section ‘Remote Witnessing Scheme,’ documents can be signed electronically. But, it specifically excludes Wills, emergency or standard.

Traditionally — and when no one had even considered electronic Wills or e-signing — the law stated that a valid will in NSW must be in writing, signed by the Testator, and witnessed by two people present at the same time that the Testator signs. What’s more, all this had to be done with the same pen. 

However, during COVID, short-term measures were introduced — allowing Wills to be witnessed remotely through apps like Zoom. This meant that the Testator could sign a physical paper document while witnesses watched on a screen. Then, these witnesses sign a hard copy of the same document.

Bear in mind, that this procedure — once considered a temporary fix and now included permanently — permits remote witnessing. However, and these points are crucial — it does not allow the electronic signing of the Will by the Testator, and remote witnessing can leave the Will dangerously open to a challenge.

What if Someone Makes an Electronic Will or Signs Electronically?

These days, it seems that there’s nothing your smartphone cannot do — from ordering takeaways to paying bills, chatting with an AI chatbot to arranging your fitness regime. It’s natural to think you could also use it to create a Will.

And theoretically, and also concerningly, it is remarkably possible to create a Last Will and Testament — of sorts — on a handheld device. For example, one could:

• Record a voice message stating who receives the estate.
• Make a personal video explaining post-death intentions.
• Sign a Will electronically.
• Ask ChatGPT or Gemini to write a Will.
• Use an online DIY Will app or website.
• Send a typed Will as a message through WhatsApp.
• Post a Will on a Facebook page.

However, what will have been created is an Informal Will — and that can bring significant problems.

An Informal Will — Its Meaning and Its Worrying Implications

For a Will to be considered formal and valid in NSW, it must stick to the requirements of the NSW Succession Act (2006) Section 6.

It says that for a Will to be treated as formal, it must address the following:

1. Be in writing and signed by the Testator.
2. Have at least two witnesses watch the Will being signed in their presence.
3. These witnesses also sign the Will.
4. The Testator signed the Will intending that its contents are followed after they pass.

Electronic Wills or electronic signing don’t meet these requirements, making them examples of an Informal Will. 

The Serious Risks of an Informal Will Include:

• The rules of intestacy applying — meaning that:
• Legal beneficiaries, under intestacy, must all provide their consent for your Informal Will wishes to be followed.
• These beneficiaries must be identified and located before your intentions can be adhered to. 
• The NSW Supreme Court often requires an international genealogical search and affidavit verifying eligible beneficiaries and evidence of their death if applicable, adding extra cost and time delays.
• The Informal Will being challenged in court — if the intestacy beneficiaries wish to disregard your alleged intentions.
• If all the beneficiaries don’t agree — and the court finds in their favour — assets are distributed to the closest family members, as outlined by intestacy rules.
• No named Executor — the court will appoint NSW Trustee and Guardian to administer and distribute your estate, not a trusted friend or professional. 
• Wishes not being followed after passing.
• Legal costs, stress, and worry for loved ones.
• Issues not becoming apparent until Probate is applied for.
• Increased chance of family disputes.
• People who shouldn’t have benefitted receiving an inheritance.

Electronic Will Case Study — When Good Intentions Aren’t Enough

Ben and Martha were a happily married couple in their 70s who both loved animals. Although Martha had two estranged adult children from a previous relationship — both of them agreed that when they eventually passed, their estate should go to the RSPCA. Ben later dies, leaving everything to Martha through a formal Will.

Now, very aware of her own mortality, Martha decided to make a Will quickly and save money by not using a solicitor. She recorded a video Will on her smartphone, declaring that when she died, all her estate should go to the animal charity. A couple of weeks later, still feeling the effects of Ben passing, Martha died of a broken heart.

When Probate was applied for, an issue arose. Under Supreme Court Rules (1970) 78.42 — since the video Will was Informal — the consent of the beneficiaries under intestacy was needed for the deceased’s wishes to be followed. Martha’s children, wanting all their mother’s money, objected, and the informal will was challenged.

This meant a three-day hearing and many thousands of dollars in fees for the estate and the beneficiaries. The RSPCA received nothing, Martha’s estranged children, deliberately excluded from the Will, gained everything. By not investing in a properly drafted Will, it meant unnecessary costs, stress — and Martha’s wishes were ignored.

An Emergency Will — The Only Way To Safeguard Wishes

The safest, most reassuring, and most powerful way to defend an estate and wishes — even in highly urgent circumstances — is to create a Will in formal, solemn form. That is, it’s signed by the Testator, in the presence of two witnesses, who also sign the Will in the same pen.

Reassuringly, an Emergency Will has all this legal robustness — the only difference between it and a ‘normal’ Will is that it’s created in an incredibly short time frame.

And, having a solicitor there at the time of the signing means there’s a respected professional who could — if later required — give evidence during Probate about testamentary capacity at the time the Will was created.

The only time when you should consider an electronic Will — for example, recording it on a phone — is if time is so short that it would be impossible to contact a solicitor before passing. It could be used later in supporting evidence, but remember the risks of Informal Wills — there’s no guarantee the court will accept it.

Can I Make a Formal Australian Will if I’m in Another Country?

Even if you’re overseas, it’s possible to create a legally valid Australian Will — and most importantly — avoid the concerning risks of Electronic Wills.

At Falzon Legal, through a video call, we can talk about your estate and intentions, and draft your Last Will and Testament — if you’re unable to have an in-person meeting. This could be crucial in time-critical circumstances, for example, if you’re seriously unwell but currently in a foreign country. 

We can then forward the document to you for execution. But as with any formal Will, you still must follow these important rules:

• You, as the Testator, must sign it.
• Two people, who are not beneficiaries, must also sign to witness the Will. 
• All these signatures must happen in each other’s presence, in the same room. 
• And, of course, it should be signed using the same pen to avoid any questions about authenticity.

Admittedly, face-to-face Will creation is always preferred. But when this is impossible, this form of Will drafting is much safer than an Electronic, and therefore an Informal, Will.

Falzon Legal — Your Emergency Will Experts

If time is short, and you need a Will urgently — either for yourself or a family member — don’t run the risk of creating an Informal Will that could be challenged in court.

With understanding and ceaseless compassion, Falzon Legal can urgently create a legally robust Last Will and Testament — attending private homes, hospitals, or aged care facilities to ease worries and increase comfort.

So, if you’re starting to wonder, can a Will be signed electronically in emergency situations? — It’s time to act now. We’re ready to assist immediately — so that your legacy, or your loved one’s, is protected.

Electronic Will Signing FAQs

Should I Use an Online Will in an Emergency?

DIY, online Will services often leave Wills open to a challenge — since they may not meet the strict legal requirements, including signing and witnessing. Instead, contact a reputable lawyer — such as Falzon Legal — to discuss an Emergency Will.

Why Is the Same Pen Important When Signing a Will?

When the Testator and witnesses use the same pen and ink, it provides evidence that all required parties were present at the same time — demonstrating that the Will was created under the requirements of the NSW Succession Act (2006) Section 6.

What’s the Quickest Way To Get a Will Made?

Call a local solicitor who provides comprehensive Emergency Will services, such as Falzon Legal. We’ll come to your place of residence — whether home or hospital —  with everything we need to create a proper formal Will on the spot.

What Is an Informal Will?

In NSW, an Informal Will is a document that supposedly states the deceased’s intentions about the allocation of their assets. However, it doesn’t adhere to the requirements demanded by the NSW Succession Act.

What Is Testamentary Capacity?

This is a requirement that demands that the person creating the Will understands what they are doing, what assets they have, and who will benefit — as outlined by Banks v Goodfellow (1870). Without this, the Will could be challenged.

Recording a Will on a smartphone doesn’t demonstrate testamentary capacity. A lawyer, such as Falzon Legal, will check for this ability with compassion and dignity.