Wednesday, 29 November 2017

Making a valid will - possibility of changes to the law ?

On 28th November, an interesting thread appeared on Twitter concerning WILLS.  The "tweeter" was barrister Barbara Rich (@BarbaraRich_law) who practices in the field of trusts, inheritance and the Court of Protection.

English Law is strict about the formalities normally required for an individual to make a valid will and these are set out in the Wills Act 1837 section 9.   In particular, the will is only valid if it is in writing, and signed by the testator, or by some other person in his presence and by his direction.  It must appear that the testator intended by his signature to give effect to the will and the signature has to have been made or acknowledged by the testator in the presence of two or more witnesses present at the same time.  Each witness must attest and sign the will.

The insistence
on formalities is supportable given the potential for fraudulent wills etc though it is also interesting that a will, once made, need not be registered and could, for example, be simply left in a drawer at the testator's home. Given that it is vital that the executor knows where the latest will actually is, it is advisable for testator's let it be known who has the will - e.g. it is with a solicitor or other service - see HERE and HERE.  By way of contrast, Lasting Powers of Attorney made under the Mental Capacity Act 2005 have to be registered with the Office of the Public Guardian.

Privileged wills - Armed Forces etc.

Historically, until the 1837 Act it was possible for a will to be made orally.  The right for anyone to make an oral will was restricted by the introduction of the formalities in the Wills Act 1837 section 9 BUT section 11 of the Act retained the right for "any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his [property] as he might have done before the making of this Act."  The law was further clarified and extended by the Wills (Soldiers and Sailors) Act 1918.  In present day law, the term "soldier" includes a member of the Air Force - 1918 Act section 5.

Dispensing with formalities?

Leaving such oral wills aside, would it be possible to make a will using, for example, E Mail or a Text?  As the law stands, the formalities seem to exclude anything other than the formal paper will.

Some other countries have adopted a different approach.  An example is Australia where there is statutory power for the court to dispense with formalities in some situations.

Barbara Rich wrote an article about the Queensland (Australia) case of Re Nichol where a Mr Nichol committed suicide and his relatives found his mobile phone which contained an unsent text which, in the exact circumstances of the case, the court held to be a valid will since the court could exercise its power to dispense with the usual formalities.  The article is HERE and is an interesting discussion of the Nichol case.  It is vital to note the judge's detailed attention to the evidence indicating the intention of Mr Nichol when he wrote the text.

As part of a project which commenced in early 2016, on 13 July 2017 the Law Commission published a wide-ranging consultation paper on the law of wills.  The consultation closed on 10 November 2017.   The Commission was of the view that - “The law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.”   One of the “significant changes” which it describes as relevant to its review is “the emergence of and increasing reliance on digital technology”, and one of the areas of will-making which the Law Commission reviews in depth is the requirement of formalities in order to make a valid will.

The Law Commission paper is a tour de force of the present law and the possibility of a "dispensing power" is discussed at para 5.81 et seq.

Keep Calm and Talk Law also has an article on the Nichol case and the possibility of a dispensing power.  They make the very valid point that a power for the court to dispense with formalities is likely to be of no value if the costs of taking the matter to court eat up the estate in question ! 

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