Wills Should be Brought into the Modern World
13/07/2017
Author: Judith Bromley
The Law Commission believes the current rules surrounding wills are unclear and could be putting people off making a will.
As such, it has launched a consultation, running until the 10 November, on whether texts, emails and other electronic communications should be recognised as a valid will in exceptional circumstances.
As it stands, the law only validates wills which have been made by people aged 18 and over, of sound mind, and signed in front of two witnesses, also aged over 18. The witnesses must also sign the will.
Where the will maker has made clear their intentions in another form - a text message or email, for example - the Commission wants to change the formality so that the family can apply to Court to have them recognised as a will. If a judge approves, those communications could then be accepted as a formal will.
Currently, when a person with no will dies, the law dictates how an estate (money, property, possessions etc.) are allocated. This may not be what they would have wanted. Partners who aren’t married or in a civil partnership are unable to inherit anything unless there is a will stating they should benefit. If there no surviving relatives, the estate passes to the Crown.
Although the Law Commission acknowledges the proposals could provide a "treasure trove for dissatisfied relatives" leading to family conflict, and a "variety of avenues by which probate could become both expensive and contentious", given 40% of people currently die without making a will, they should be recognised.
However, Judith Bromley, head of wills and probate at Russell and Russell, said: “As a will is a very powerful document, and directs who can inherit monies and assets, any changes to rules that have been in force for many years will need to be carefully thought through, so that vulnerable members of society are protected. It will be very challenging to ensure that a text message can ever confirm such clarity and certainty, which is what a will needs to provide. There is also the obvious concern that electronic measures are not open to misuse.
“Surely a better way would be for the Law Commission, supported by the Law Society, to expend its effort on campaigns to communicate the message that obtaining a will is paramount if you own assets of any value. Perhaps it should also focus on the bespoke service that lawyers provide and the various will campaigns that are offered up and down the country throughout the year when a will can be professionally drawn up for a relatively small donation.”