When a Signed Will Is Not Enough: What a Recent Supreme Court Decision Says About Online Estate Planning.

The growth of online estate planning has made preparing a Will faster, cheaper and more accessible than ever before. A person can now answer questions online, have a Will generated or prepared using those responses, and arrange for the document to be signed without ever attending a traditional face-to-face meeting with an estate-planning lawyer.

For many people with straightforward circumstances, there is an obvious attraction to that model.

However, a recent decision of the Supreme Court of New South Wales provides an important reminder that a Will is more than a correctly drafted document. The process by which a person’s testamentary intentions are identified, tested, recorded and ultimately translated into the Will can become just as important as the words appearing on the page.

In The Estate of the late Wilma Annette Pusterla [2026] NSWSC 951, the deceased had testamentary capacity. She signed a formally prepared Will after it had been read aloud to her. There was also insufficient evidence to establish that she had been subjected to undue influence.

Yet the Will was nevertheless rejected by the Court.

The problem was knowledge and approval.

What happened in Pusterla?

Wilma Pusterla died in December 2023 leaving an estate worth approximately $3 million, the principal asset being her home in Willoughby.

Over many years, she had made a series of Wills benefiting friends and various charities. Under her 2020 Will, her residuary estate was divided between her close friend and six charities. The plaintiff, Jeff Smith, who was the son of Wilma’s late de facto partner, was appointed as a substitute executor but received no beneficial entitlement under that Will.

By 2023, Wilma was 91 years old. She was physically frail, legally blind and experiencing some short-term memory difficulties. Following the death of the friend on whom she had previously relied, Jeff became increasingly involved in assisting with her affairs and was appointed as her attorney and enduring guardian.

Wilma subsequently told Jeff words to the effect that she intended to leave him her house.

Jeff contacted a solicitor whom he had previously used and arranged for a new Will to be prepared.

That is where the difficulty arose.

The solicitor did not take Will instructions directly from Wilma.

Instead, the instructions were communicated through Jeff — the person who would ultimately become the sole beneficiary.

An email sent by Jeff to the solicitor referred specifically to the Willoughby home that Wilma wanted to leave to him. However, the Will ultimately prepared did something considerably broader: it left Wilma’s entire estate to Jeff.

Under cross-examination, the solicitor accepted that he had never taken instructions for the Will directly from Wilma, had not independently confirmed with her that the Will reflected her wishes and had not sent the draft Will to her.

The solicitor also did not attend when the Will was executed.

Instead, Jeff arranged for two people with whom he worked to attend Wilma’s room as witnesses. They were strangers to Wilma. The Will was read aloud to her and she signed it shortly afterwards.

Testamentary capacity was not the problem

The charities challenged the 2023 Will on several grounds, including testamentary capacity, knowledge and approval and undue influence.

Importantly, the Court found that Wilma did have testamentary capacity.

Although there was evidence of short-term memory loss, there was no diagnosis establishing incapacity. Around the relevant period she remained alert, communicative, engaged with political issues and capable of expressing her own views.

That distinction is important.

A person can have testamentary capacity but nevertheless fail to understand or approve the particular document that has been put in front of them.

The critical issue: did the Will actually reflect Wilma’s intentions?

Ordinarily, where a person has testamentary capacity and a Will has been duly executed, the Court may presume that the person knew and approved its contents.

However, that presumption can be displaced where the circumstances surrounding the preparation or execution of the Will create a well-grounded suspicion that the document may not truly reflect the will-maker’s intentions.

The Court found precisely those circumstances in Pusterla.

There was a significant combination of factors:

• Jeff was instrumental in arranging the Will;
• Jeff was the sole beneficiary under it;
• the solicitor preparing the Will took no instructions directly from Wilma;
• Wilma had told Jeff that she wanted to leave him the house, whereas the Will gave him the whole estate;
• the solicitor did not independently confirm that change with Wilma;
• the witnesses were selected by Jeff and were strangers to Wilma;
• the execution meeting was very brief; and
• there was no subsequent evidence demonstrating that Wilma understood that she had given Jeff her entire estate rather than merely her home.

The fact that the Will had been read aloud to Wilma immediately before she signed it was not enough to overcome those concerns.

The Court ultimately found there was a strong and well-grounded suspicion as to whether the document reflected Wilma’s true intentions. Jeff failed to establish that she knew and approved its contents, and the 2023 Will was therefore invalid.

The Court instead ordered that the earlier 2020 Will be administered.

What does this have to do with online Wills?

The decision raises an interesting issue as estate planning increasingly moves online.

There are now numerous ways in which a person can prepare a Will without attending a traditional face-to-face conference with an estate-planning lawyer. These range from basic Will kits and automated document platforms through to services involving varying levels of lawyer review or advice.

There is nothing inherently invalid about preparing a Will online.

Nor does Pusterla establish that a lawyer must physically sit opposite a client before a valid Will can be prepared.

That would be the wrong lesson to draw from the case.

The more important question is: How are the will-maker’s actual intentions identified, tested and verified?

Document preparation is different from taking instructions

There is an important distinction between producing a document from information provided by a client and the broader process of obtaining and testing testamentary instructions.

A questionnaire might ask:

• Who would you like to receive your estate?
• A lawyer conducting an estate-planning conference can go considerably further:
• Why?
• Who would ordinarily expect to benefit from your estate
• Why are you excluding that person?
• You have told me you want your daughter to receive the house. What do you want to happen to the balance of your estate?
• You have described this account as jointly owned. Do you understand that it may not form part of your estate at all
• You have nominated your superannuation to your spouse. Do you understand that your Will may not control that benefit?

And sometimes, most importantly: You have just given me an answer that appears inconsistent with something you told me earlier. Which is actually your intention?

Those conversations do more than produce drafting instructions.

They enable the lawyer to identify misunderstandings, explore potential claims, distinguish estate from non-estate assets, identify issues relating to capacity or undue influence and ensure that the ultimate document actually reflects the client’s intentions.

They can also create valuable contemporaneous evidence of those intentions if the Will is challenged years later.

Pusterla demonstrates why that distinction matters

Consider what may have happened had the solicitor in Pusterla spoken directly with Wilma about her testamentary instructions.

One very simple question could have exposed the problem:

“You have said that you want Jeff to receive your house. What would you like to happen to everything else?”

That conversation apparently never occurred.

Instead, an instruction concerning the house became a Will disposing of the whole estate.

That difference ultimately contributed to the failure of a Will involving an estate of approximately $3 million.

It is a powerful illustration of the difference between preparing a document and understanding the client’s testamentary intention.

Online does not have to mean impersonal

Technology itself is not the problem.

Estate-planning lawyers increasingly take instructions by telephone and videoconference. For clients living regionally, interstate or overseas, remote conferences can be extremely effective.

A lawyer does not necessarily need to be physically present to ask probing questions, speak privately with the client, assess whether instructions appear voluntary, clarify inconsistencies and make a detailed attendance note recording the client’s intentions.

Indeed, technology can improve access to specialist estate-planning advice.

The relevant distinction is therefore not necessarily: online versus in person.

It is, document production versus meaningful professional engagement with the will-maker.

Those are not the same thing.

When might an online Will be appropriate?

For a person with a very straightforward estate, conventional family structure and uncomplicated wishes, an online Will may provide an accessible and cost-effective option.

But complexity is not measured solely by the dollar value of an estate.

A seemingly simple instruction such as “everything to my three children equally” may conceal questions about blended families, estrangement, previous financial assistance, trusts, companies, superannuation, jointly owned property or potential family provision claims.

There is also another form of complexity that may not be apparent from the answers given in a questionnaire – the circumstances in which the instructions are being provided.

An elderly or vulnerable person making a substantial change to a longstanding estate plan in favour of the person assisting them presents very different considerations from a person making an uncomplicated Will consistent with their longstanding intentions.

The document itself might be equally simple. The evidentiary risk is not.

The value of the estate-planning process

Clients sometimes understandably ask why they should pay a lawyer to prepare a Will when an apparently similar document can be produced online for a fraction of the cost.

The answer should not simply be that lawyers draft better clauses. Good estate planning involves considerably more than drafting. It involves understanding the client’s family, assets and relationships; identifying issues the client may not know are legally relevant; challenging assumptions; testing instructions; advising on consequences; and creating a reliable record of why the eventual Will says what it says.

In most cases, none of that evidence will ever be needed. But after the will-maker dies, they are no longer available to explain what they intended. If a dispute arises, the contemporaneous estate-planning file may become some of the most important evidence available.

The lesson from Pusterla

Pusterla is not a case about online Wills. But its implications are relevant as estate planning becomes increasingly digitised and automated. Wilma had testamentary capacity. Her Will had been professionally drafted. The document was read aloud to her. She signed it. There was insufficient evidence to establish undue influence. And the Will still failed.

The problem was that the process did not adequately establish that the document placed before her actually reflected the testamentary intentions she had expressed.

As estate planning becomes increasingly automated, that distinction is worth remembering.

A professionally prepared document is not necessarily the same thing as comprehensive legal advice. Preparing a document is not necessarily the same thing as independently obtaining and testing a client’s instructions. And obtaining a signature is not necessarily the same thing as establishing that the will-maker knew and approved what they signed.

Sometimes the most valuable part of preparing a Will is not the document at all.

It is the conversation that occurs before it is drafted.

How can HHG Legal Group help?

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