Your last Will and Textament – could digital Wills create more problems than they solve?

The reality is that more of us are living our lives online and there are certain circumstances where an email or a text could be considered as a valid expression of final wishes. In a recent interview with BBC Wiltshire, my fellow Will expert Amanda Noyce talked about a case in Australia where a 16 year old girl had sadly committed suicide. The last text that she sent to her mother about her wishes on death was upheld by the court.

The Law Commission’s consultation paper has taken cases such as this into account and has suggested that in certain circumstances the court should have the power to grant a person’s clear wishes, even if they have not made a valid Will.

The proposals for the introduction of electronic Wills may be appropriate, for example, for those involved in emergencies when time is of the essence. This approach could also be appealing to those that might think that writing a Will is too complex or costly, however, we would stress that this doesn’t have to be the case with the right legal advice.

And some of the Law Commissions proposals make a lot of sense. For example, if a person had made a new Will, which seemed logical and reflected their known wishes, but only had one witness, rather than the required two, it would seem reasonable for the court to stand by this Will. It is hoped that updated rules will decrease the amount of Will disputes that take place and increase protection for the vulnerable from financial abuse and undue pressure.

What are the risks of these changes?

It’s unclear at this early stage how far the law would change; what would happen if a Will is prepared, but the person dies before signing? What about the person whose text messages to a friend indicate very different intentions to those set out in their valid Will? Any power for the court would need careful scrutiny and set parameters, which would no doubt increase over time.

I would be particularly concerned about increased abuse of vulnerable and elderly people. The current requirements are designed to protect them, to ensure their Will represents their true intentions. If these formalities are relaxed, how certain can the court be that wishes expressed are genuine? Electronic Wills are an area where cases of fraud may increase if the systems used are not sufficiently sophisticated.

What’s the future for Wills?

It is entirely understandable that the Law Commission wish to update rules which have been in place since the 1800s. There have been significant developments over the past two centuries; with an ageing population, increased understanding of dementia and significant technological advances.  The challenge for the Law Commission will be to create proposals which, whilst addressing certain cases of injustice, do not simply create further uncertainty and increased legal disputes.

Personally, I would like to see a compromise between a fully digital Will and the current paper-based Will and will be monitoring the outcomes of the Law Commission’s public consultation with keen interest.

For now, my advice remains that the best way to be certain about how your estate will pass on your death is to take professional legal advice and make a Will sooner rather than later.