Law Commission reports do not tend to make headlines outside the confines of the legal profession but its recent report on reforming the law relating to Wills generated much media interest, raising as it did the prospect of valid Wills made electronically. Most people’s perception of a Will is that it is a written document (perhaps held together with legal tape) and the prospect of a bereaved family gathering in front of a screen to hear their late relative dispose of his estate by way of a video statement seems futuristic.
Are electronic Wills a possibility?
The Law Commission considered it highly likely that electronic Wills would become commonplace at some point. However, a number of issues around formal requirements, signature, security, consistency across platforms and viable infrastructure have to be ironed out beforehand. After all there is no point making an electronic Will that cannot be viewed on your death because technology has moved on in the meantime. The Law Commission recognises in their report that electronic Wills should “as a minimum” provide the same standard of protection currently afforded by written Wills and recommends that for the moment Parliament is given an enabling power which could be used to introduce legislation at some as yet unknown future date when all the recognised current difficulties have been overcome.
Review of formality requirements
In their very comprehensive report on the law relating to Will making, the Commission also reviews the current law governing how a Will is made, i.e. the formal requirements that have to be adhered to to ensure that a Will is valid. These are laid down by statute and currently provide that a Will should be in writing and signed by the testator in the presence of two witnesses, who should both be present to see the testator sign his Will and both should sign the Will in the presence of the testator.
Evidence has been produced to the Law Commission that failure to adhere to formalities leads to a number of Will disputes. The Commission is therefore considering whether these formal requirements should be relaxed in some instances, as is the case in other countries. This would allow a document intended by the deceased person to give effect to his testamentary intentions to be declared valid by the court even if not drawn up in accordance with all the formal requirements. For example, in New South Wales, where the courts have this power, a suicide note that began “Mum, you are the beneficiary of my estate” was held to be an expression of testamentary intention and admitted to probate although it was unwitnessed.
The Law Commission recommends that the courts in England and Wales should be given similar powers which means that a Will intended to be a testamentary document could be declared valid by the courts even though it does not conform to the required formalities. The Commission also takes the “tentative view” that the court’s powers in this respect should also extend to it being able to recognise electronic documents and audio and video recordings as testamentary documents.
This recommendation seems slightly at odds with the report’s discussion on electronic Wills. For example, video recordings were considered when looking at electronic Wills and the view was expressed that they might be better as an adjunct to the Will making process, rather than a way of making a Will in themselves, given a number of problems with the format not least because of the potential use of imprecise language. It therefore seems slightly anomalous that elsewhere in the report it should be recommended that the court should be able to recognise a video recording as a testamentary document.
Is this likely to happen?
It is important to note that this is only a tentative recommendation by the Law Commission in its consultation document. The recommendation to widen the power to dispense with formalities to video and other electronic means of Will making may not form part of the Law Commission’s final report and, if included, might not be enacted by the government.
Even if the power to dispense with formalities is extended by law to include electronic documents, testators should not rush to get out their smartphones or video cameras. Until electronic Wills become a mainstream legal concept with their own rules governing execution and formalities, anyone wishing to rely on an electronic Will (or indeed a written Will executed without following the formalities rules), would have to rely on their executors applying to the court after their death for an order recognising the Will: an expensive and uncertain course of action.