The legal requirement to make a valid Will dates back to the 1830s, which has caused many to suggest that Will making in the UK is archaic and needs to be updated to come into line with the digital age.
The Law Commission wishes to pave the way for the introduction of electronic Wills so that text messages, emails and voicemails could be considered legally binding as a person’s Will. Therefore, in the future you may need to be careful with what you write in a text message!
At present it is believed that about 40-50% of people in the UK die without making a Will or do make a Will which they do not realise is invalid as they have not complied with the stringent legal requirements for making a valid Will.
The Law Commission want to amend the current formal rules to make a valid Will where the deceased made their intentions clear in another form, such as in a text message. The family would be permitted to submit these alternatively formed intentions to a Judge for him to determine whether they constitute a Will. This would give wider powers to the Court to recognise a Will in cases where the formal rules haven’t been followed.
It is hoped that, by allowing a Will to be made via digital devices, which is permissible in countries such as Australia and Canada, that more people would make a Will – or of course would it result in more Wills being contested?
If digital forms such as text messages were permissible, dissatisfied relatives “…may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a Will on the basis of a dispensing power.” If the law does change it will remain advisable for all persons living in England and Wales or owning assets here to still make a paper Will and not to leave it to the last minute in order to try and avoid unnecessary costs to their Estate and family.
While bringing Will making into the digital age is to be commended, there do need to be many safeguards before such new methods can be used.
The Law Commission is also reviewing the age at which a person can make a Will. At present you have to be an adult to make a valid Will in England and Wales, although exemptions do apply for those in the armed forces and other public services such as the police force. The Law Commission has suggested that the age for making a Will should be lowered to 16, as some people have great responsibilities under the age of 18. Other jurisdictions do have lower ages such as Scotland where you can make a Will from the age of 12.
The current law does not properly take into account conditions that affect decision making such as dementia and the Law Commission is proposing that a new capacity test should be introduced. Also it is proposed that there will be an overhaul of the current laws on undue influence.
The intent of the Law Commission’s proposals is to make Will drafting more straightforward with the aim that this will encourage more people to make a Will. Professor Nick Hopkins who is in charge of the project has said that “…Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”
This is welcomed news as the complications that arise through people dying intestate are expensive and can be emotionally draining for the family. Also, next generations are likely to affiliate more readily with digital devices and so the law needs to change to reflect this. However, great consideration needs to be given to what constitutes a valid Will as it could create more avenues to challenge a person’s estate.
The news today reiterates again the reasons why people should make a Will. If you wish to make a Will or to make some changes to your existing Will, please contact our expert Private Client team at Mackrell Turner Garrett. Our team will be able to guide you through the process and ensure that your wishes are correctly recorded giving you and your family invaluable peace of mind.