On the 13 July 2017, The BBC reported:
“The law around wills should be updated and brought into the “modern world”, the Law Commission for England and Wales has said”
The current rules were “unclear” and could be putting people off from making a will, it added.
It is considering whether texts, emails and other electronic communications should be recognised as a valid will in exceptional circumstances.
The commission has launched a consultation on the proposals.
‘Outdated’
Currently, for a will to be legally valid it must be voluntarily written by someone who is 18 or over and of sound mind and be signed in front of two witnesses who are also both over 18 and must also both sign the will in your presence.
But the commission wants to change the existing formality rules where the will-maker has made clear their intentions in another form.
It gives the example where a car crash victim has not made a formal will but has expressed their intentions in electronic or other messages, such as a text or email.
The family could then apply to a court to have those communications recognised as a formal will.
These messages could only then be recognised as a will if a judge approved.
What happens if there is no will?
- If someone dies without a will, rules dictate how their money, property or possessions should be allocated, and potentially not in the way the deceased would have wished
- Unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a will
- If there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the Crown
- Specific rules can vary across the United Kingdom
The Law Commission acknowledged the proposals on electronic communications could cause family arguments or worse.
It said the plans could provide a “treasure trove for dissatisfied relatives” and lead to a “variety of avenues by which probate could become both expensive and contentious”.
But it said on balance it believed they should be recognised by the courts, noting that 40% of people currently die without making a will.
Law Commissioner, Professor Nick Hopkins, said making a will should be “straightforward” but the law was “unclear and outdated”.
“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it.
“And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.
“That’s not right and we want an overhaul to bring the law into the modern world.
“Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”
The consultation closes on 10 November.
What do we think?
We agree that the laws for making a Will are outdated with legislation still in force from 1837, although the statute has been amended through the years the bones of the legislation remain the same as those introduced back in 1837.
We agree that the legislation should be updated and brought into the modern era but we have concerns that the use of electronic communications may be a step too far. How do we know that the electronic communication is from the individual concerned, how do we protect individuals from undue influence, fraud and coercion? How do we know the individual has the mental capacity to construct the electronic communication and is making a reasoned decision? What is the definition of exceptional circumstances? What we have here is more questions than answers.
We think the Law Commission would be better placed looking at regulating Will writing and updating the legislation to reflect modern living and family dynamics.
For further information or to discuss any of these issues please email Rebecca Bristow at rb@startpointlaw.co.uk or telephone her on 01548 288008.