Bequeathed by text: Is a text message your future will?

Posted on Wednesday August 29, 2018

Natalie PayneIn England and Wales, in short, for a Will to be valid, you and your witnesses must be over 18 and it must be in writing and contain the correct clause as to how the Will is signed.  The Will must also be signed by you before two witnesses who also sign, whilst you have capacity and understand the effect your Will shall have.

You must also not be under any pressure and make your Will voluntarily.  There are some exceptions to these requirements but they are specific to a person’s circumstances.

Last year, the Law Commission, an independent body that keeps the law of England and Wales under review and to suggest reforms, announced it was reviewing the legal rules concerning Wills which date back to the 19th Century.

The legal reform programme aims to amend a large number of rules but it seems that one of the recommendations caused more concern than the others: the possibility to make a valid Will via text message.

The Courts in Australia, Canada and some U.S. States have powers to recognise informal documents as legally valid Wills, whereas in England and Wales we do not. This is a reform that the Law Commission may recommend being introduced as many feel the law in England and Wales is outdated and the strict signing requirements put people off making a Will. With technological advancements this is an issue for all legal systems worldwide and as the below cases show there are differences of approach.

Many jurisdictions are facing similar issues with modern technology changing the way that we draft documents and recognise their legality.  In 2014 a Swedish Court of appeal ruled that a man’s text message stating his Will before committing suicide was not legally valid.  Last year the Brisbane Supreme Court in Australia accepted an unsent text message as a man’s Will as it was agreed that the wording of the text seemed to indicate that the man wanted it to be his Will.

This year a French Court in Metz ruled against a text message sent as a Will, the reason here: the text message did not comply with the formal requirements set out in the French Civil Code.  In the case of the threat of imminent death in Denmark a Will sent via text message would be recognised, since in such an emergency all the legal formality requirements cease to be applicable.  These are just some of the examples of what cases have come before courts worldwide.

Although some flexibility is welcome, it is a concern among many that allowing Wills to be made by one or more text messages may give rise to more litigation and families unnecessarily incurring legal costs.

Making a Will should not be a daunting exercise and the team at Mackrell Turner Garrett will make the process as seamless as possible thus enabling you to protect your family and friends futures in the way you wanted.

Please contact Natalie Payne on 020 7240 0521 or if you have any queries.