Is the way we draw up our Wills about to change?

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Technology and digital communication could change the way Wills are managed and executed. Final Choices talks to James Berry of law firm Hodge Jones & Allen about current interpretation of a Will.

Following the rather strange story that a court in Australia recently upheld a text message as constituting a valid Will, this week we look at what constitutes a formal will and how technology will shape that shift.

“Bizarrely,” James says, “the Australian court decided that an unsent text message found on a deceased man’s mobile phone was enough to constitute a legally valid will. Instead of relying on legislative formalities, the court instead cited the man’s clear intentions as their reasoning for the decision.”

Legal validity of text messages

The Will, which divided the man’s estate equally between his brother and nephew, was challenged by his wife on the grounds that the draft text message had never actually been sent.

“But because the text message included not only the whereabouts of the dead man’s stashed cash, but also directed how his ashes should be scattered, the judge ruled that because he was clearly aware of the nature and extent of his estate, just because the message was informal, it could not prevent the man’s intentions from prevailing,” James says.

While this decision bears no weight in the UK, James believes it does suggest a shift in the legislation around the formality of a Will is coming to the UK.

“The statute in which the bulk of our laws involving Wills derive dates way back to 1837,” James says. “The Law Commission is currently running a public consultation on the law around Wills, looking to modernise the current legislation and recognising that the way we all run our affairs has changed, including the technology we use to do it.”

Current law

One of the more specific proposals is to enable the court to dispense with the formalities for a Will where it is clear what the deceased wanted – as in the case of our deceased texter. Currently, a Will is only valid if:

  1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction
  2. it appears that the testator intended by his signature to give effect to the Will
  3. the signature is made or acknowledged by the testator in the presence of
  4. two or more witnesses present at the same time
  5. each witness either —

(i) attests and signs the Will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).

“These existing formalities purport to serve as both evidentiary and cautionary functions. But it has long been disputed whether these functions are effectively fulfilled or even relevant at all. The consultation is looking at whether these formalities actually work as a barrier in dissuading people from making a Will, which no-one would think is a good thing.

“Most private client lawyers agree that the legislation around Wills is archaic and needs reform,” James says. “Change may be coming, but, for the time being, people should stick to the traditional methods of making a Will.

“Whatever happens, new laws will probably not stray too far away from existing laws, since that would risk creating a recipe for many disasters to follow.”

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