A behavioural economics analysis of will making preferences in Australia: When to begin and who should have the most input?

The COVID-19 pandemic has highlighted the need to plan for the transmission of property on death by making a will. This raises questions about when and how people access valid will making. To create a valid will in Australia, it has traditionally been necessary to comply with certain legal formalities, including that the testator’s signature must be witnessed by two independent witnesses who are physically present when the testator executes the document. Public health orders for isolation and social distancing in response to COVID-19 made compliance with the ‘presence’ requirement challenging, if not impossible. In response, several Australian jurisdictions adopted emergency provisions enabling remote online audio-visual (AV) witnessing of wills, and there have been calls for research to inform whether these provisions should become permanent. Yet, there has been limited research about will making practices generally or of attitudes toward will making in Australia – evidence fundamental to any succession law reform dialogue. In particular, there are two foundational questions about which little is known: how and when do people plan for death; and what do members of the public and legal professionals perceive the lawyer’s role to be in will making. This paper reports the results of our behavioural economics empirical study exploring these questions.