In July 2017 the Law Commission launched a 280 page Consultation setting out proposed changes to the law relating to wills. The consultation period closed in November 2017, with the Law Commission having received 177 responses from a variety of stakeholders including law firms, charities and estate professionals. The current law in England and Wales dates back to the Victorian era with the Wills Act 1837.
The Law Commission has proposed that this should be modernised to take account of the changes in society, technology (particularly the emergence and increasing reliance on digital technology) and medical understanding which have taken place in the last 180 years.
There are two features of the Consultation, which have attracted headlines and controversy. The first relates to the proposal to introduce a dispensing power, which would permit a court to admit to probate a will which was not executed in accordance with the strict legal formalities, but where there is sufficient evidence that it contains the wishes the testator intended to set out in a valid will. The second issue relates to the use of technology and the potential validity of wills which are produced without any paper content or written signature.
Formalities / Dispensing Powers
Under the current law, to be a valid a will needs to be executed correctly. What this means is that if there are errors of form but not of substance, then a testator’s intentions can be defeated. Examples of such errors include when the will has not been witnessed, when the wrong party has signed it or amendments are incorrectly made.
The Law Commission have proposed that courts be given the power to dispense with the formalities for a will. In some jurisdictions such as Australia, the courts already have a dispensing power which allows them to prove a will even if it has not been executed formally. If a dispensing power is granted the court could approve a will that had not been signed, a draft document or an oral testament. Whilst the advantage of such a power is obvious in situations where a testator's testamentary intention would otherwise be frustrated, conversely relaxing these formalities may heighten the risk of fraud and undue influence playing a role in the testamentary process, which could lead to a potential increase in claims brought by disappointed beneficiaries.
The Law Commission has said that if a dispensing power were introduced there are ’strong arguments’ that it should apply not only to traditional written documents but also to those in an electronic format, including a digital document or audio recording. An example of where a dispensing power might be used could be if someone seriously ill in hospital might have more immediate access to a tablet or smartphone than to a pen and paper and may be more able to speak than to write. The Law Commission have said that it would be for the courts to assess the facts in an individual case basis.
At present there is no major jurisdiction in the world which recognises purely electronic wills such as audio recordings, video recordings or pure electronic or digital documents. The Law Commission have proposed that the law be changed to introduce an enabling power which would allow the introduction of electronic wills at some point in the future via secondary legislation. The non- committal nature of the proposal has attracted some criticism for not going far enough in that it does not specify a timeline or the level of public consultation this would involve. The Commission have said that they want to ensure that any transition towards the introduction of electronic wills is as smooth as possible and that "the issues of security, viable infrastructure, and consistent implementation all indicate that a balance needs to be struck between regulating electronic wills and allowing enough flexibility in the law for electronic wills to develop ".
Safeguards would need to be implemented to provide testators with sufficient protection against the risks of fraud and undue influence. Examples of difficulties which might arise would be if the technology used to prepare an electronic will subsequently became obsolete and hence the will could no longer be accessed; similarly there are risks associated with lost passwords or usernames which might prevent access; the risk of audio, video or other electronic data being hacked or tampered with and any storage area being degraded or damaged whether, in the cloud or on physical hard drive. Depending upon exactly what has occurred there is also uncertainty as to whether an insurance policy would respond and if so what? Would professional advisors need to obtain bespoke cyber insurance to cover any claims arising from documents stored in the cloud?
In Practice – Australia
During the consultation period a Queensland decision was handed down which gives some vital context to these issues. In the case, Re Nichol  QSC 220, the Supreme Court of Queensland (which is one of the jurisdictions where the courts have a dispensing power of the type which the Law Commission have proposed) decided a case which was the subject of headline news even in England. They upheld the validity of a short but very clear statement contained in an unsent text message found on the mobile phone of a man who had committed suicide leaving behind no formal will. Under the intestacy rules in Queensland the testator's estate would have gone to his second wife Julie (from whom he was separated and who had a new partner) and his estranged son from his first marriage, Anthony. However, on the testator's mobile phone a draft text message was found which read:
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636
The message had not been sent, but it indicated that the testator intended to leave his estate to his brother David and his nephew Jack. The Court were persuaded that the intention was for this text to be his will and it represented his testamentary intentions. It was prepared shortly before his suicide. The Court agreed that the reason it had not been sent was because the deceased had not wanted his brother to be alarmed by the text – and did not want any interference in his suicide. Under Section 18 of Queensland’s Succession Act 1981, courts are allowed to declare that a document should be treated as a valid will, even though it does not comply with the formal requirements for a will. For the courts to exercise this power it must find that the document contains the testamentary intentions of the deceased and that it was intended to be their will. This is what the Supreme Court found and the text message was held to be a valid will. Some commentators have reacted negatively to the idea that this might be possible in England, but the decision is perhaps persuasive as to the value of a dispensing power. It also reflects the extent to which people need and use modern technology in their lives – and on their death.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.