Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, discusses a very sad and sensitive case where a grieving family were required to file proceedings in the NSW Supreme Court to have an invalid online Will upheld to honour her final wishes after she tragically took her own life.
Trigger Warning: This article contains content about suicide.
Background
The application to the NSW Supreme Court by Maggie Riman regarding the estate of Rita Riman involved a family who were forced to go to great lengths and expense to uphold an invalid online Will which was completed by Ms Rita Riman prior to her tragically taking her own life in June 2021.
Prior to her death, Ms Riman lived in New South Wales and had two parents who survived her, and two siblings, a sister and a brother. She was never married and never had children.
During her life, Ms Riman had worked as an IT professional, leaving her job a few years before she died.
According to statements made during this case, Ms Riman suffered a lot of stress in her job role, which led to psychological trauma. She was treated for that trauma and attended a private psychiatric hospital and a number of other clinics to receive ongoing psychological treatment.
Following from this, Ms Riman suffered a cardiac arrest in 2017 and she moved in with her sister and sister’s family for support.
She lived with her sister for approximately 12 months. After moving out to live independently, she remained in close contact with her sister, and they maintained a positive relationship.
Ms Riman did not discuss her intention to make a Will with her sister or any other person. Other than her relationship with her sister, Ms Riman did not have much contact with her parents and her brother.
Sadly, Ms Riman committed suicide in 2021. She was only 42 years old.
Prior to her death, she completed an online Will to stipulate how she wanted her estate to be distributed.
Ms Riman’s superannuation formed the bulk of her estate. The value of her overall estate was about $900,000.
Despite drafting an online Will, the Will was not considered valid within the meaning of the Succession Act 2006 (NSW). In the absence of a valid Will, Ms Riman technically died intestate.
What does it mean to have died intestate?
When someone dies without leaving a valid Will, or “intestate”, then the rules of intestacy apply.
Under the rules of intestacy, there is a statutory list of persons to whom the assets of the deceased are distributed. This ultimately depends on who survives the deceased. Sometimes, the rules of intestacy are not in line with the deceased’s wishes.
In the case of Ms Riman, the deceased had no surviving spouse or children when she died. Under intestacy, her estate was to be divided equally between her surviving parents. This was in contrast to what Ms Riman had indicated her wishes were in the online Will she completed. Her online will provided that the bulk of her estate was to be given to her sister.
Why was the online Will invalid?
Ms Riman typed out her instructions after completing a series of questions on the online Will website and submitted her answers to the platform.
Unfortunately, she failed to formalise the Will in accordance with the law. Although an online product runs you through a series of questions to create an electronic document at the end, that document is not legally binding until it is printed, signed and witnessed by two eligible witnesses.
This is what Ms Riman failed to do. She failed to execute the Will in accordance with the law. It seems like a small oversight, but it had vast ramifications, making an already difficult grieving process much harder for Ms Riman’s loved ones after she passed away.
Although Ms Riman failed to print and sign the document correctly, she did take an additional step after completing the online document. She sent a link to the digital document to her solicitor stating she had drawn up and completed a Will.
This email and other messages would be later used as evidence in this case to support the sister’s application that the online Will should be deemed valid.
Requirements to uphold an invalid Will
Other than the existence of the online Will document, in this case there was very little evidence about what the deceased’s testamentary intentions were when she died.
The deceased’s sister, Maggie Riman, believed that the contents of the online Will truly reflected her sister’s final wishes, as did her parents, and they wanted the Will to be upheld.
Unfortunately, for this to happen the family endured a complicated legal process which took over 12 months to finalise.
This was, essentially, an informal Will application. Ms Riman’s sister requested that the Court dispense with its usual requirements that make the Will a legally binding document, so that the informal Will could be upheld.
In order to determine whether an informal Will should be upheld, the Court asks three questions:
- Is there a document? The definition of a document under the Succession Act has been expanded to include a handwritten note, a typed note on a phone, a draft text message or email, and a video recording.
- Does the document contain the deceased’s testamentary intentions? Does the document set out their intentions for how they wish to distribute their assets after they pass away.
- Was the document intended to operate as the deceased’s Will? Most applications submitted to the Court as an informal Will fail on this question because it needs to be proven that the document is more than just a passing or fleeting thought, and more than merely a draft version of a Will that needs further editing.
The legal process
Ms Riman’s sister filed proceedings in the Supreme Court to have the online Will validated and admitted to Probate.
The application was uncontested.
Ms Riman’s parents supported their daughter, Maggie’s application and they gave evidence that they had seen the online Will which had been prepared by the deceased and that they understood and appreciated why she wanted to leave her estate to her sister.
Further to this, the Attorney General became involved in the case, as well as the online Will company. They also provided evidence in the proceedings.
Ultimately, it was up to the judge to determine whether the online Will was or was not valid.
The proceedings began in June 2021 and the case was finalised in July 2022.
The Court’s determination – an exception to the rule
This is such an interesting case, and one that is distinguishable from other online Will or informal Will applications.
What sets this case apart from other informal or online Will applications is the timing and the circumstances of Ms Riman’s death.
Ms Riman completed the online Will on the morning of 14 June 2021. Later that day, she took her own life.
Other than the online document, there was very little evidence to support the application. There was no evidence of prior Wills that were in line with this document and there was no evidence of any discussions the deceased had with third parties or independent witnesses to verify that what was in the online draft Will was intended to form her last Will.
It was only in Ms Riman’s own evidence in the form of her messages and emails to the online Will platform, to her lawyer and to her neighbour. Those emails and messages suggested that Ms Riman was of the view that she had completed her Will, but that she could not formally execute it in time (only later was it understood that she didn’t have time because she intended to take her life later that day).
Due to this evidence, the Court was satisfied that Ms Riman intended for that document to operate as her last Will.
This outcome is the exception, it is not the rule! The case was determined on its own facts.
At the end of his judgement, his Honour made this poignant parting comment:
I should mention, whilst acknowledging that digital communication has become an essential part of the social and economic fabric of society, that this application has been determined on its own facts. But for the statements, in writing, made by the deceased, about the online Will, the Plaintiff’s claim may not have succeeded.
What his Honour meant by this comment is that if it weren’t for Ms Riman’s own evidence, by way of her messages and emails, this application may have failed.
The dangers of online Wills and “do-it-yourself” Wills
This case is just one example of what a family had to endure to ensure their loved one’s wishes were upheld.
In this case, the Will clearly stipulated how the deceased wanted her assets to be distributed after she had died, however failing to sign and execute the document properly, meant the deceased’s loved ones had an uphill battle to have the Will validated.
Unfortunately, this is a costly exercise! The family would have paid tens of thousands of dollars in legal fees for this type of application. This is something that could have been avoided had the Will been properly prepared by an experienced estate planning lawyer.
Many people opt for an online Will or do-it-yourself Will Kit to avoid paying a few hundred dollars to get their Will drafted by a lawyer, however, what they fail to consider is the significant cost their loved ones and their estate must pay to have the Will upheld should it be deemed invalid.
In this case, the family succeeded, and the Will was honoured, however, in most cases involving an online Will or homemade Will that does not meet legal requirements, the rules of intestacy will apply.
It isn’t just the signing of the document that can go wrong, there is a long list of issues that can cause a Will to be challenged after someone dies.
Another common issue is how to interpret the Will. For example, the use of the word “property”. This word can have two different meanings. One person might take it to mean that the deceased is leaving their “house” to a beneficiary, whereas another person may interpret it as the whole estate is being left to them.
If a Will is not clearly written, then the loved ones left behind must go to court to have a judge decide how to interpret the Will.
The key takeaway from this case
What may seem like a simple and convenient option, to create a Will online yourself, is far more complicated than most people think. Everyone should consider getting appropriate legal advice to ensure that their wishes will be upheld, and their Will is valid if the unexpected does happen, no matter their age, health status, or the wealth that they hold.
The process of having a Will drafted by an experienced estate planning lawyer is simple and straightforward.
The litigation process, on the other hand, that can follow if someone fails to make a valid Will, is far from simple.
With the emergence of smart technology, it is no wonder online Wills are becoming more prevalent. In some respects, it makes sense that people are turning to the Internet to make their Will, we use the internet for just about everything these days. But it is fraught with risk and disaster!
Unlike when you engage a law firm to draft your legal documents, if something goes wrong using an online Will company there is often no one to sue.
If a lawyer or similar professional makes a mistake, they have compulsory indemnity insurance which is checked off by the law societies each year before they can practice. There is no such cover provided to online Will companies making it near impossible to hold them accountable for negligence.
Atwood Marshall Lawyers are passionate about educating the community about the pitfalls of do-it-yourself Wills, online Wills, and free Wills offered by the Public Trustee to help people understand the significant risk these products carry.
Unnecessary litigation and legal costs can be avoided if you are proactive and get your Will done properly.
Attwood Marshall Lawyers – helping people plan for the future and preserve their wishes
Attwood Marshall Lawyers are a leading law firm boasting one of the country’s most experienced Wills and Estates departments. We have dedicated teams who practice exclusively in estate litigation, estate planning, and estate administration.
The three areas are significantly different and require specific knowledge and experienced to ensure clients can plan for the future effectively. When disputes arise after someone passes away, you need an experienced lawyer on your side to ensure the matter is resolved in the most efficient way possible, reducing costs and the stress associated with litigation.
For assistance with contesting a Will, challenging a Will, or defending a Will and trying to have it upheld, please contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or phone our 24/7 phone line on 1800 621 071.
You can also make an appointment with any of our lawyers by using our online booking app. Click here!
Our estate litigation lawyers are available for appointment at all our office locations at Coolangatta, Robina Town Centre, Kingscliff, Brisbane, Sydney and Melbourne.
Read more:
Advice for beneficiaries in a Will when there is a dispute
The Dangers of Online Wills – Buyer beware!
How to defend a claim against an estate when you are appointed Executor in a Will
