15 August 2017

cld a txt bcm ur will?

By Miranda Marshall, Director, Hayes + Storr.

Let me translate: Could a text become your Will?

Recent headlines have indicated that people will be able to use voicemail and text message to make their Wills, under a radical overhaul of law proposed by the Government’s legal advisors.

The Law Commission has branded the current system of Will-making as ‘outdated’ and recommends that it be revolutionised to keep up with the digital age. At present, to be valid a Will must be signed by the testator (the person making the Will) in the presence of 2 witnesses, who are all together at the time and also sign the Will.

The new proposals would allow a judge to decide, on the balance of probabilities, whether a recording or a note is an accurate summary of the deceased person’s wishes. Even deathbed changes of heart could be recorded and used to override an existing valid will.

This sounds like a heyday for contentious probate lawyers!

However, like all such things, it is not quite as it first appears. The consultation document argues that this should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording.

The Law Commission admits that these proposed changes could increase family arguments as relatives trawl through their departed loved-one’s technology for evidence of a change of mind to their benefit.

The consultation adds that: “A person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen or paper, and may be more able to speak than to write. On the other hand, the potential recognition of electronic documents could prove 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.”

These powers already exist in Australia, Canada, South Africa and several US states.

In the wake of these announcements, caution has been urged both by lawyers and older-person’s special-interest groups amid concerns that the elderly and vulnerable could be even more subject to undue influence. Questions of updating tests as to mental capacity have also been raised by replacing current Victorian-era law with the principles of the modern Mental Capacity Act.

One thing is certain, however, that the hasty and ill-judged making of a Will can only cause distress, cost and delay for those left to sort it out. It is not the preparation of the document that is the main cost of a professionally-drawn Will but the benefit of knowledge, experience, attention-to-detail and professional indemnity insurance.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead.  However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you require advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter please call 01328 863231 or email law@hayes-storr.com.

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