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Are Wills by Text or Voicemail the Future?

Texts, voicemails and emails could be considered valid Wills by the Courts, in proposals made by the Law Commission’s consultation paper published on 13 July.

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The Commission estimates that 40% of the adult population currently die without making a Will, meaning that their estates are distributed in accordance with the law of intestacy. When a person dies intestate, there is no guarantee that their estate is distributed as he or she intended or wished. In particular, there is no provision for co-habitees, stepchildren or second marriages or relationships under the law of intestacy.

Wills Act of 1837

The law governing the making of Wills was established by the Wills Act of 1837, and states that the Will must be in writing, and signed by the Testator in the presence of two witnesses, who must also sign the Will in the presence of the Testator and of each other.

The law that determines whether a person has the mental capacity to make a Will (“testamentary capacity”) dates from 1870.

Reluctance of many to make a Will

Some have stated that the ‘outdated’ law is one reason for the reluctance of many people to make a Will. The Commission will consider whether the law can be modernised in order to encourage more people to make Wills, and to take into account the changes in society, technology and medical understanding that have occurred since Victorian times.

Some of the Commission’s proposals are:-

  • The possibility of making an electronic Wills in the future;

  • The possibility of reducing the age at which a Will can be made from 18 to 16 (and younger in some cases);

  • The possibility of changing the existing formal rules for making a Will where the Testator has made his or her intentions clear in another form – for example, by text, email or voicemail. Court approval would need to be sought for these messages to be recognised as a Will.

  • A new mental capacity test which would take into account conditions which affect decision-making, such as dementia.

The Law Commission’s consultation closes on 10 November 2017.

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