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The formalities of making a will – is a change of law on the horizon?

The BBC recently reported on a rather bizarre story coming out of Australia. A court decided that an unsent text message found within a deceased man’s mobile phone was enough to constitute a legally valid will. Instead of relying on legislative formalities, the court instead cited the man’s clear intentions as their reasoning for the decision.

Legal validity of text messages

The will, which left his estate equally between his brother and nephew, was challenged by his wife on the grounds that the draft message had never actually ever been sent! The text message however had not only included the whereabouts of his stashed cash, but also requested how his ashes should be scattered. The judge therefore ruled that as he was aware of the nature and extent of his estate, the informal nature of the message could not prevent the man’s intentions from prevailing.

Whilst the above decision bears no weight here in the UK, it does suggest a shift of what might be to come. Our Law Commission is currently fielding a public consultation on the law of wills, with their main aim being to modernise the current legislation and to account for changes in society, technology and medical understanding. The statute in which the bulk of our laws in this area derive dates all the way back to 1837.

Current law

One of the more specific proposals is to enable the court to dispense with the formalities for a will where it is clear what the deceased wanted. Currently, as per s.9 of the Wills Act 1837 a will is only valid if:-

(a) it is in writing, and signed by the testator, or by some other person in his
presence and by his direction; and
(b) it appears that the testator intended by his signature to give
effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of
two or more witnesses present at the same time; and
(d) each witness either —
     (i) attests and signs the will; or
     (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the             presence of any other witness)

The existing formalities purport to serve as both evidentiary and cautionary functions. However it has long been disputed whether or not these functions are effectively fulfilled or even relevant at all. The consultation paper is probing to uncover whether or not these formalities instead act as a barrier in dissuading people from making a will.

The public consultation is open until 10 November, following which the policies will be developed and overall findings will be reported.

Whilst it is accepted by most in the practice area that the legislation is archaic and needs reform, it is hoped that any new laws do not stray too far away from the essence in which the area is based upon. To do so would surely create a recipe for many disasters to come.