An AI-generated Will can be legally valid in New South Wales, provided it meets the requirements of the Succession Act 2006 (NSW) and the will-maker has the necessary testamentary capacity to make a Will. However, using Artificial Intelligence (AI) to prepare a Will does not guarantee that the document would be legally effective or that it would accurately reflect the will-maker’s wishes. Errors in drafting, signing or witnessing the Will can create complications and potentially lead to disputes.
AI has rapidly transformed many aspects of our lives and the way we approach everyday tasks and decision-making. AI-driven legal services have become increasingly popular, enabling users to generate a range of legal documents through automated questionnaires, with Wills being one common example. Whilst AI-generated Wills may seem appealing due to their convenience, low cost and accessibility, there are significant risks and limitations that can be easily overlooked.
What makes a Will legally valid in NSW?
The Succession Act 2006 (NSW) outlines what makes a Will legally valid. According to the Act:
A will is not valid unless-
- it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
- the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
- at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
As a general rule, a beneficiary should not witness a Will, as doing so may affect their entitlement under the Will.
While section 8 of the Act gives the Court the power to dispense with the formal requirements for the execution, alteration or revocation of a Will, it should not be viewed as a safety net. Any application is made only after the will-maker’s death, when they are no longer able to clarify their intentions or respond to challenges. The Court may or may not be satisfied that the document was intended to operate as a Will, meaning the outcome is uncertain and beyond the will-maker’s control. Proper execution of a Will during the will-maker’s lifetime is therefore far preferable to leaving the validity of the estate plan to be determined by a Court after death.
Meeting the formal requirements for a valid Will under section 6 of the Act does not necessarily prevent the Will from being challenged. A Will may still be found invalid if concerns arise regarding the circumstances in which it was prepared and/or executed. Some of the most common grounds on which the validity of a Will is challenged include:
- lack of testamentary capacity;
- lack of knowledge and approval of the Will’s contents;
- undue influence or coercion; and
- fraud, forgery, or suspicious circumstances surrounding the preparation or execution of the Will.
Using an AI generated Will usually removes involvement from legal practitioners, therefore making the Will more prone to successful challenge.
What are the risks of using AI to write a Will?
Assessing Testamentary Capacity
For a Will to be valid, the will-maker must have testamentary capacity. This involves more than simply answering a series of questions. The will-maker must understand the nature and effect of the Will, appreciate the extent of their assets, and recognise those who might reasonably expect to benefit from their estate. An experienced estate planning lawyer can assess whether these requirements are met, identify potential concerns, and, where necessary, recommend a medical assessment to reduce the risk of a later challenge. AI cannot perform this assessment. It cannot evaluate comprehension, detect confusion, or verify capacity, and instead assumes that the information entered by the user accurately reflects their understanding and intentions.
Ensuring a Will is signed and witnessed correctly
A common mistake when preparing a Will without professional assistance is failing to comply with the witnessing requirements. For example, a beneficiary may be asked to act as a witness, which can place that beneficiary’s entitlement under the Will at risk. While online and AI-generated Will services may provide general instructions regarding execution, they cannot supervise the signing process, verify that the correct procedures are followed, or ensure that independent witnesses are present when the Will is executed. As a result, errors may only come to light after the will-maker’s death, when they can no longer be corrected.
Identifying undue influence or pressure
Wills are sometimes challenged on the basis that the will-maker was subjected to undue influence or pressure. An experienced lawyer will typically take instructions directly from the client and may identify circumstances suggesting that another person is influencing the decision-making process. This can be particularly important where a family member, carer or new partner is heavily involved in providing instructions.
By contrast, an AI tool cannot determine who is providing the information or whether the responses genuinely reflect the will-maker’s independent wishes. If the validity of the Will is later challenged on the grounds of undue influence, the absence of independent legal involvement and contemporaneous evidence of the will-maker’s instructions may make it more difficult to establish that the Will represents the will-maker’s true intentions.
Overlooking Important Estate Planning Considerations
Effective estate planning involves far more than simply preparing a Will. It requires consideration of a range of legal, financial and practical issues that may not be immediately obvious to someone without specialist knowledge.
For example, superannuation commonly passes outside the Will pursuant to a death benefit nomination, jointly owned assets may pass automatically to the surviving owner regardless of the terms of the Will, and gifts can fail if a beneficiary predeceases the will-maker or if the asset the subject of the gift is no longer owned at death. Other important considerations include the appointment of guardians for minor children, digital assets, succession planning, tax consequences, and ensuring an executor has adequate powers to administer the estate effectively.
The difficulty is that people often do not know what they do not know. The absence of a warning or error message does not mean an estate plan is complete or effective. A Will may appear perfectly adequate on its face, with any deficiencies only becoming apparent after death when it is too late to address them. By then, the consequences are borne by family members and beneficiaries, often leading to much higher costs than the initial expense of a properly considered and professionally prepared estate plan with a suitably qualified legal practitioner.
Key Takeaways
You are not legally required to engage a lawyer to prepare your Will. However, drafting a Will is often far more complex than many people realise. A seemingly minor mistake in the wording, structure or execution of a Will can have significant and lasting consequences, potentially resulting in disputes, increased costs, delays in administering your estate, or assets passing to people you never intended to benefit. By the time these issues come to light, it is often too late to correct them.
There is a reason estate planning is a specialised area of legal practice. Whilst AI-generated documents may appear convenient, they cannot replace the professional judgment, expertise and tailored advice that comprehensive estate planning requires. Estate planning lawyers undertake years of study and practical experience to identify risks, anticipate issues and implement strategies that protect a client’s wishes. There are less than 100 Accredited Specialists in Wills & Estates in the whole of NSW, and Turner Freeman Lawyers houses 4 of them so you can rest assured you are in good hands. Contact us today to enquire about how we might be able to assist you.
