Posted by Michelle Young, Will Writing & Estate Planning Expert
Time will tell whether or not the law will be changed to allow for electronic Wills, enabling texts and emails to stand in place of an official Will. Here is our guide to proposed legal updates.
A consultation was recently undertaken with the aim of bringing the system of writing a Will into the 21st century. The Law Commission has said that the current method of Will writing, which was derived from the Wills Act 1837, was outdated. One of the Law Commission’s proposals included making a provision for electronic Wills. An electronic Will would enable modern communication methods such as texts and emails to be used to allow a person to share their final wishes.
They launched a consultation to see if the general public agreed with them. The consultation closed on 10th November 2017 and responses are currently being analysed before the report of the findings are disclosed.
As it currently stands, a person who writes a Will needs to have the document signed by two witnesses in order to make it legal. Typically, this is done in the presence of a solicitor who then holds onto the document to ensure that it can be executed at the time of the person’s death.
However, statistics suggest that only around 40% of UK adults actually have a Will. For the rest, legal problems can occur when a person dies as there is nothing to declare what they want done with their estate. Rules dictate that the estate and money be given to certain people – for example, children or a spouse. However, this does not take into account any personal circumstances, which can mean that these rules go against the wishes of the deceased if they have been estranged from those people.
The Law Commission argues that, in the future, if a person does not have a Will, texts and emails sent by the deceased could be used in order to determine what their final wishes would have been. A court would be required to make a judgement as to whether the communication was an accurate depiction of what a person wanted and if so, the communication could be classed as an electronic Will.
Furthermore, they also call for the age at which a person can make a Will to be lowered from 18, as it currently stands, to 16 years of age.
Finally, the consultation calls for a new mental capacity test to be introduced. It would be based on current understanding of illnesses such as dementia, to ascertain if a person is sufficient of sound mind to be writing a Will.
The Law Commission itself admits that its suggestions do come with some challenges. Within the consultation document, they state; “We note that the potential recognition of electronic Wills via a dispensing power is a double-edged sword. On the one hand, it seems essential that the power is applicable to electronic documents. [People making a Will] who do not follow the [current] rules… are increasingly likely to use electronic means.
“For example, a person who is seriously ill in a hospital may have more immediate access to a tablet or smartphone than to a pen and paper and may be more able to speak than to write. On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives. They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a Will on the basis of a dispensing power.
“In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious. While there are arguments on both sides, we take the view that, on balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power.”
Any potential changes regarding the introduction of electronic Wills won’t be seen for several years. They would have to be passed into law first. The consultation closed on 10th November 2017, and you access the latest project status on the Law Commission website.
Making a Will doesn’t have to be an onerous or difficult task. Here at Funeral Planning Experts, we have outlined how to make a will. We can also put you in touch with work specialist Will Writers, all of whom provide a simple and straight forward service, allowing you to ensure your final wishes are met.
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