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Laura Willis – Associate Solicitor in our Private Client team – asks: Is the current law on Wills outdated?

The Law Commission for England and Wales has proposed that the law around Wills should be updated and brought into the “modern world”. The Law Commission wants to change the existing rules about how to create a valid Will where the individual has made their intentions clear in another form. Today’s case that has been decided in Australia may be indicative of this transition. A Court in Australia has accepted an unsent, draft text message on a deceased person’s telephone as an official Will. This should be viewed with caution and certainly not be relied upon, not least because it is an Australian Court, but it does give a precedent for a text message to be valid as a Will.

Under the current law, for a Will to be valid it must be written voluntarily by an individual over the age of 18. The individual must have the mental capacity to make the Will and needs to be signed in the presence of two witnesses who are also both over 18, The law about valid Wills in Australia is similar to the UK, but the Court in today’s case decided that the text message was still valid in the absence of a signature and witnesses because the use of the words “my Will” in the message showed that the deceased intended it to be his Will.

The UK Law Commission has recently submitted a proposal whereby when an individual dies unexpectedly and has not made a valid will, but has otherwise expressed their intentions in either electronic or other messages  (i.e. a text message  or email) then the family could apply to a Court to ask for those communications to be recognised as a formal Will. The Judge would have to approve this and it could be costly to make such an application so this avenue would only be relied on in extreme circumstances and it would still be extremely important to have a valid will in place. The case that has been decided today in Australia is essentially how this proposal might work in practice.

The Wills Act which currently governs the making of a Will in England and Wales has been in place since 1837 and the Law Commission clearly feels that it may be time to update the law to make it more appropriate for the modern era, but they must be aware of the potential issues and costly litigation that this proposal could give rise to. For example, the current law requires a person making a Will to understand all possible claims that could arise against their Estate and so a potential risk of allowing the text message or email to stand as a Will is that the individual sent the message without having full regard of those potential claims. Furthermore, the person who sent the message may have been under severe pressure to do so and may not have the opportunity or advice available to really consider their wishes.

There are many issues that the Law Commission will have to consider and it may well be the case that any message deemed to be a Will by a Judge would only be relied upon in extreme circumstances, but it will be interesting to see how the consultation progresses and what conclusions are made.  For the time being, it is essential that you ensure you have a Will in place to make it clear and certain about how you would like to leave your assets.

If you would like our assistance with preparing a Will please contact myself at our Manchester office, or Lewis Thompson at our Glossop office, and we will both be happy to discuss this further with you.

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