Article written by Jeremy Brooks, Private Client Solicitor
Making a Will is one of the most important things anyone can do. In England and Wales, the law surrounding making a valid Will is contained in the Wills Act 1837. WhatsApp wasn’t even a digital dream in its designer’s eye when the Wills Act came into force and of course in 1837 there was no question of making a Will electronically.
The Law Commission has finally published its long-awaited recommendations on updates to the Wills Act 1837 and included consideration of whether Wills can be made electronically.
At the heart of consideration are the key legal requirements for making a Will.
What’s required for a valid Will?
There are key elements required to ensure a will is valid:
- The testator must be at least 18 years of age. The testator is the person making the Will.
- The testator must have the capacity to make the Will. That means the testator must be of sound mind.
- The will must be in writing, and the testator must sign it (or, in certain circumstances, be signed by another person in the testator’s presence).
- The testator must sign the Will in the presence of two witnesses or acknowledge their signature in the presence of two witnesses.
- Two witnesses must sign the Will in the presence of the testator.
The Law Commission has recommended a number of changes to this – including lowering the age at which a Will can be made to 16 and indeed making it possible for younger people to apply to court for the right to make a Will.
At the time of the Covid-19 Pandemic, emergency amendments were made to the Wills Act, allowing people to witness a Will remotely via video link and in many jurisdictions around the world, similar emergency measures have become permanent.
The Law Commission’s proposals on Electronic Wills
In its report, the Law Commission advised that electronic Wills should be possible and has drafted a new Wills Bill that could become law if it gets through Parliament. Wills should still have to be witnessed, but just as they were witnessed via video link in the pandemic, so electronic witnessing should be possible permanently. It suggests a number of safeguards to ensure that Wills are not fraudulently witnessed.
It is important to stress that these are just proposals from the Law commission: Parliament would have to pass them into law. On recent polls, about 75% of those who work in the legal profession are opposed to electronic Wills, because they fear that the opportunity for fraud would be too great.
Wills by WhatsApp certainly seems a long way off and it is hard to see how the necessary protections could ever be in place, but it may well be that electronic Wills are not that far off.
One other interesting possibility which is proposed by the Law Commission is to grant judges ‘dispensing powers’ for Wills. Where it is clear what a testator’s intentions were with regard to their estate, it would be possible for a judge to read those intentions into a document, or a series of documents – even where they had not been correctly executed as a Will.
Could those clear intentions ever be shown by WhatsApp? It seems hard to believe that a series of messages could ever satisfy the evidentiary requirements, but time will tell.
For more information on Wills and estate planning or to discuss a particular issue further, please feel free to email me or contact the team on 020 8858 6971.