Rebutting the Presumption of Intentional Revocation of a Will by Destruction: An Examination of Electronically Signed and Remotely Witnessed Wills

Abstract

The introduction of electronic execution and remote witnessing and attestation of Wills by New South Wales, Victoria and Queensland in response to COVID-19 invites examination of a wide range of foreseeable probate issues. While wet ink Wills ordinarily result in a single static physical document, a Will executed under the interim measures may result in the production of a range of physical, digital or hybrid records. In this article we discuss whether and how this disrupts the common law presumption of intentional revocation of a Will by destruction when the original Will is last traced to the testator’s possession but cannot be found on their death. We argue that the nature of electronic Wills can pose challenges for rebutting the presumption of destruction. These challenges include poor access to digital records, uncertainty as to which record is the original file and which the copy, and the risks associated with ambiguous document storage practices. However, we also suggest that electronic Wills can provide a level of assurance that can overcome some of these challenges, where at least a copy of the Will is available. Electronic signatures may even serve to displace the need for traditional witnessing requirements, potentially broadening access to Will-making in the community.

Keywords: Wills; COVID-19; electronic signature; remote witnessing; estate litigation; estate planning

JEL Classification: K36