Will Reform: Texts, emails and voicemails could be legally recognised as a Will under proposals
1st August, 2017
The Law Commission has announced a public consultation with a view to modernising what some consider being the outdated law relating to Wills to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.
A Will is a very important and powerful document as it sets out how a person’s assets are to be distributed and often expresses preferences about what happens to their body after death. If a person dies intestate, without leaving a valid Will, the intestacy rules dictate how the estate is to be divided between family members and this may not reflect the wishes of the person who has died or the family arrangements of the deceased.
Despite the importance of having a Will, it is thought that around 40% of the adult population has not made a Will.
Even when someone has made a Will the complexities in the law, which is mainly derived from the Wills Act 1837 and the 1870’s case of Banks v Goodfellow which sets out the test for testamentary capacity, can sometimes mean strict formality rules are not followed and the validity of the will is called into question.
The Law Commission is consulting on proposals to “bring the law into the modern world” and to encourage more people to make a Will by:-
- giving the Court greater flexibility to uphold Wills that do not meet legal requirements;
- using the Mental Capacity Act test to establish capacity to write a Will;
- creating new rules protecting those making a Will from being unduly influenced by another person;
- allowing Courts to accept a text message or email as a valid Will in exceptional circumstances;
- making provision for the introduction of electronic Wills in the future; and
- lowering the age for that a Will can be made from 18 to 16.
It is likely that many of these proposals, if implemented, will increase the scope for people to make a Will without seeking professional legal advice and as a consequence the number of challenges to the validity of such Wills, brought by disgruntled or dissatisfied relatives, will rise accordingly. The possibility for Wills to be made electronically in the future in particular raises concerns regarding the vulnerability of people, particularly those who are elderly, ill or disabled, to be subjected to fraud or undue influence by friends and family members as well as carers or others assisting with their affairs.
If you would like advice in relation to making a Will or you wish to review your current Will then please contact Clive Pointon, Head of our Wills Trust and Tax department. Alternatively if a relative has died and you believe that their Will was made in suspicious circumstances or you have been unexpectedly left out of their Will then please speak to James Wallace who specialises in disputes relating to the validity of Wills as well as claims for financial provisions from an estate under the Inheritance (Provision for Family and Dependants) Act 1975.