Wills Formalities in the Twenty-First Century—Promoting Testamentary Intention in the Face of Societal Change and Advancements in Technology: An Australian Response to Professor Crawford by Kelly Purser and Tina Cockburn
The law of wills is steeped in tradition, including what is required for the valid execution of a document purporting to contain a testator’s intention for the distribution of her or his estate upon her or his death. This is reflected in the need to comply with certain formalities for a will to be valid. Although these formal requirements differ in extent and form throughout the world, their purposes, in common law jurisdictions such as Australia and the United States of America, are fourfold: they serve evidentiary, cautionary or ritual, protective, and channeling functions. The evolution of society, and particularly the pace of technological advancements, has arguably called the need for such formalities into question—both as to the extent to which they should exist and be enforced. The role of the wills formalities has also been called into question in the context of access to will-making: for some the very act of making a will can be problematic as the associated legal costs can be prohibitive. In response to the cost of will-making, in Australia at least, there has been a rise in “homemade” wills, wills prepared using “will-kits,” and online forms which use artificial intelligence (AI). However, such “do-it-yourself” wills often fall foul of the aforementioned formalities and may not be upheld. Consequently, although well-intentioned, such homemade wills can actually negatively affect testamentary freedom because wills evidencing a clear testamentary intention can be found to be invalid or uncertain owing to a lack of technical know-how if strict or substantial compliance is required.