The process of making a valid Will in England and Wales is currently governed by the Wills Act 1837, which states, amongst other things, that a valid Will must be in writing and signed by the testator in the presence of two witnesses, who must also then sign in the presence of the testator and of each other.
Given advances in today’s technology, this process seems slightly outdated and it has recently been branded as such by the Law Commission.
With a view to keeping up with the digital age, the Law Commission has drawn up plans to launch a consultation suggesting that a testator should be able to validly record their wishes in the form of notes, emails, voicemails and even text messages.
The proposals do not suggest that all such communications will be valid as a binding Will, but that the courts should at least be able to take into account ‘on the balance of probabilities’ exactly what the testator’s wishes were based on such communications that may be presented to them. If the courts are satisfied with the testator’s wishes, and that no undue influences have been placed upon them, then they could direct how the deceased’s estate be distributed even if this is contrary to an existing Will.
At present, even in cases where a testator has made their wishes unequivocally clear if the formalities of the 1837 Act have not been followed the courts do not have the power to intervene.
One of the primary reasons for this proposal is to make the process more accessible, particularly to those who may be without a will and in a state of not being able to complete the necessary formalities. Technology today is at our fingertips and so a testator could record their wishes almost immediately if they found themselves in a situation which required them to do so.
There are of course concerns amongst practitioners that, firstly, such a change could amount to an increase in undue influence being placed on vulnerable people to make “last minute” changes to their wishes. Secondly, there is also likely to be an increase in family arguments searching through communications in an attempt to override a Will that may have been validly executed years earlier.
In addition to the above, the Law Commission has also proposed the mental capacity test used to determine if someone is able to make a Will be simplified and the age to make a Will also be lowered from 18 to 16.
A consultation regarding the above changes is due to commence on Friday and run until November 10.
Pinney Talfourd will be keeping you up to date with progress throughout the consultation but in the meantime, if you don’t have a Will in place feel free to contact our Private Client team who would happy to discuss this with you.