November 6, 2017
It can be argued that the Wills Act 1837 is long overdue for an overhaul but is allowing electronic and video wills going too far?
The Law Commission is intent on dragging wills into the 21st Century in England and Wales to keep up with the digital age. So much so that they started a consultation on 13th July 2017.
Under the current law, wills have to be written and signed by the testator and witnessed by two individuals for a will to be valid. It has been suggested that judges hearing contested wills in England and Wales should be given dispensing powers to treat a document as a will even if the formalities have not been followed. It will be considered whether “on the balance of probabilities” a note or a digital recording, is an accurate account of a person’s wishes so that it can be considered to be their last will and testament.
This has been tried in other countries before but without much success. The US state of Nevada introduced a statute in 2001 but to date, there has been no technology available to meet the standards prescribed in that statute.
In a very recent case in Queensland Australia a 54 year old man committed suicide and after his death a text message was discovered on his phone in his drafts folder which was unsent. He addressed it to his brother and it included instructions on where to find money in the house, how to access his bank accounts etc and it finished by confirming that this was his will.
His wife contested the case arguing that the text message could not be a will as it was not sent. The Queensland Supreme Court in Brisbane said that the wording of the text and the specific use of “my will” and the other references in the text to his estate indicated that it was the man’s intention that this should be his will. Justice Susan Brown also took into consideration that the relationship between the deceased and his wife was rocky, that they had separated and that they had recently separated when he took his own life.
The Supreme Court found that the will was valid. This was possible due to an amendment to the law in 2006 to allow the judiciary to consider special cases without the formal documentation.
The Potential Pitfalls:
- Electronic documents can be hacked and amended. How can you make sure that an electronic will is safe when massive corporations are hacked every day?
- Wills of this type could add to family arguments and lead to potential beneficiaries going through deceased’s relatives digital devices for evidence that they have changed their mind.
- How do we know that the person was of sound mind when writing the text or videoing their last wishes – could it be argued that a man that committed suicide such as in the recent Australian case could not have been of sound mind or he would not have killed himself?
- How do we know that the person writing the text or videoing their last wishes was not being forced to write or say what they did under duress, maybe someone was at their side but off camera threatening them.
- What if someone took your phone and wrote the text themselves and then put in your drafts folder? How often do you check your drafts folder?
- What if someone took your phone and wrote the text message themselves and sent it to themselves without your knowledge. How often do you check your sent items?
- Would it not make it too easy to pressure people to make last minute changes to their wills without them even really realising that this is what they have done? Vulnerable people will be most at risk.
The list of “what ifs” is endless. It would be hard if not impossible to ensure that these electronic wills have been done by the testator, have not been hacked and changed or have not been done whilst being coerced.
The Consultation runs until 10th November 2017. It is envisaged that the final recommendations will include a draft bill for a new Wills Act that would be considering within a year or so.
Watch this space for the outcome and please do not hesitate to get in touch with a member of our team if you have any questions.
About the Author
Samantha Ibrahim is a Private Client Practitioner within our Wills and Probate team.
Samantha, who joined Spencers Solicitors in 2010, is an experienced and qualified Chartered Legal Executive with a strong background in personal injury including acting for claimants involved in accidents at work and in relation to industrial disease, public and occupier's liability. Samantha’s role has evolved and her main focus is now on the provision of Wills and Probate services.