A couple of weeks ago The Law Commission put forward proposals to relax the strict rules surrounding Will-making. The law that governs Wills in England and Wales mostly derives from the Wills Act 1837 and many feel that the law needs to be modernised. Proposals put forward include allowing informal Wills to be made by email, text message, video recording, voicemail and other means.
Critics of the proposals are concerned that there are several problems with allowing people to make informal Wills. Firstly, this provides more opportunities for fraud. For example, a friend or relative could send a text message from an elderly person’s mobile phone purporting to be from them.
There are currently strict formalities that must be followed in relation to Wills, including that the person making the Will (the Testator or Testatrix) must sign their Will in the presence of two independent witnesses. This may be a slight inconvenience, but it provides protection from fraud as there is evidence that the Testator or Testatrix has signed the Will themselves. The independent witnesses (who cannot be beneficiaries in the Will) also provide some protection for a vulnerable person who may otherwise be pressured into making a Will against their wishes. If witnesses are no longer necessary, then how will we know whether an email or text message was sent under threat from a greedy relative or carer?
Another objection to these proposals is that if a Will is made informally then there will be no clear evidence that the Testator or Testatrix had mental capacity at the time they made the Will. If someone puts a drunken status on Facebook, could this be interpreted as a Will under the new proposals? The Law Commission proposes that the power to recognise informal Wills should be retrospective, which means that some of us may have already made an informal Will without knowing it.
The Law Commission has acknowledged that if informal Wills are accepted under the law then this could lead to an increase in family disputes and litigation. Family members may scour emails and text messages for any evidence that their deceased relative wanted them to inherit.
There are of course advantages to allowing informal Wills to be accepted under the law. It will allow a Testator’s intentions to be followed in situations where there are minor technical errors in the Will. It would also be useful in situations where an original Will has been lost and only an unsigned copy can be found. The Law Commission believes that the advantages outweigh the risks, particularly as the judiciary would have control over what constitutes an informal Will and each case would be looked at on an individual basis.
It is hoped that by allowing informal Wills, this will reduce the number of people dying without a Will, which is estimated to be around 40% of adults in England and Wales. Unfortunately, many people believe that they do not need a Will, particularly if they are married, but a husband or wife may be forced to sell the family home if their spouse dies without a Will. There are many other reasons that Wills are extremely important, such as if a parent wishes to provide for children from a previous relationship. Even if the law surrounding Wills is relaxed, it will still be important to ensure that a Will is drawn up and executed correctly if Court battles between family members are to be avoided in the future.
For more information please contact a member of our Wills, Trusts & Estate Administration Team on 0118 975 6622 or 01491 570900.