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Wills to be made by text or email?

Sarah Nash, Solicitor and Head of Private Client at Astle Paterson discusses the Law Commission’s recommendations for the introduction of electronic Wills.

Sarah said “It is estimated that 40% of adults die each year without a Will.

Should you die without a Will, the intestacy rules dictate how your money, property or possessions should be allocated.   That means there is no guarantee that your estate would be distributed as you intended.

For example, unmarried partners cannot inherit from each other unless there is a Will.   Also, as marriage revokes any previous Wills, provisions leaving money to support children from a previous marriage or relationship for example would be ignored and the new spouse would receive the bulk of the estate.   When someone dies without leaving a Will, or with a Will that is not valid, it can cause difficulties for the family, adding to stress at a time of bereavement.

The Law Commission for England and Wales has said that the law of Wills needs to be modernised to take account of the changes in society, technology and medical understanding – that the current rules were “unclear” and “outdated” and could be putting people off from making a Will.

The Law Society of England & Wales has said that the Law Commission’s public consultation is a welcome step towards updating our will-making laws to keep them fit for purpose in the 21st Century.

Indeed, the Law Commission wants to pave the way for the introduction of electronic Wills to better reflect the emergence of and increasing reliance upon digital technology.

Sarah continued “Currently, for a Will to be legally valid it must be voluntarily written by someone who is 18 or over and of sound mind and be signed in front of two witnesses who are also both over 18 and must also both sign the Will in your presence.

The Law Commission wants to change the existing formality rules where the person making the Will has made clear their intentions in another form.   It gives the example where a car crash victim has not made a formal Will but has expressed their intentions in electronic or other messages, such as a text or email.   In this situation an application could be made to a court and these messages could only then be recognised as a formal Will if a judge approved.

There are however concerns that the proposals on electronic communications could cause family arguments or worse.   It might appear to be perfectly sensible to allow the court more flexibility when there are harmless errors in a Will but the deceased person’s wishes are clear, but questions will be raised on how safe electronic Wills would be from fraud or undue influence against vulnerable people.   The proposals could lead to probate becoming both expensive and contentious.”

Sarah concluded “One thing is clear – under the law as it stands, the only way to make sure that your wishes are adhered to is to make a Will and follow the necessary formalities.”

Astle Paterson is currently offering a free 30 minute Will Review Consultation – please contact our Head of Private Client Sarah Nash on 01283 531366 or by email at snash@astlepaterson.co.uk to arrange an appointment.

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