Wills by Text? Legacies by Voicemail?

Wills by Text? Legacies by Voicemail?

Apparently, Wills written on paper, signed by the Testator and two witnesses and dated, is all a bit last century.

Here is a link to a recent article in the Daily Telegraph –Link Here –

With the headline “Could a Text become your Will?” the newspaper is referring to a newly released report of the Law Commission.

According to the Telegraph, the Commission calls for the law to be relaxed to allow notes, emails and voicemail messages to be used in place of a written will.

The Law Commission has been set the task of considering whether the modern rules of will making in 2017 should remain the same as those which have been in place since 1837.

The reactionary response would be, why change what works? The revisionist response would be, Yebbut, is it working though innit? [Revisionists speak like that, I feel sure]

The fact is that whilst most people in England would probably agree that making a Will is important and something that they should do, in fact less than half of the adult population has done so. Should the making of a will therefore be “easier” than it is at present?

The link to the Law Commission report is here – Link Here – at first glance the newspaper report seems alarmist. Do a word-search [control;+F] through the report and there is no specific mention of email or text as being the suggested basis of a valid will.

There is no specific recommendation that the creation of a valid will made in England should in future abandon the use of pen and paper and witnesses, in favour of a quick text.

Rather, the report seeks to recognise that the true purpose of the law should be to ensure that the wishes of a person making a will can be put into effect after death, even if some oversight has been made in the formalities of the will.

It says, the rules about making wills, are a “means to an end, not an end in themselves”.

So, if someone has made it very clear what their wishes are, does it truly matter whether the record is on paper or hard disc or Facebook? Thus the Commission seems to recommend that in such a case, the absence of an actual paper Will should not stop a Court form being able to operate a “dispensing power” in order to ensure that those wishes come into effect.

My own view is that whilst the Law Commission is not recommending that Wills should no longer be on paper, there is a big risk here. The Law of Unintended Consequences. Or in other words, most changes make stuff worse. You can quote me on that.

In this case I predict the thinking will be “if the Courts are to be give a dispensing power, why go to the expense of making a “proper” Will?”

And Cynics will say, there is nobody as inventive as a disappointed person left out of an inheritance, trying to find a basis for a court case.

The report itself admits that an earlier report from 1980 which considered relaxing the rules, in the end decided against doing so, reaching the conclusion that this could lead to “more expense, litigation and delay in cases where it can least be afforded, noting that the homemade wills are the ones which most often go wrong.”

More expense delay and litigation? Seems to me that as soon as there is a chink in the armour, just as soon as there is even a notion in the mind of a disappointed non-beneficiary that the Court might deem an email or an unprinted computer document or diary entry to be sufficient evidence of intent as to amount to a legal Will, here comes argument and there goes certainty.

And when certainty is out of the window, litigation lawyers make money! See the Bleak House Jarndyce v Jarndyce extract below*.

And this even this new report does articulate [and then argues against!] the thoughts which most lawyers will have had upon first reading the Telegraph article, – it says, I paraphrase “the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives  … who may be tempted to sift through huge volumes of texts emails and other records trying to find one to put forward as a record of intent – as a Will”.

You really think so, Sherlock?

Here is a link to be downloaded at the foot of this internet page  – Link Here – a response form which you can complete then print and post, or email.

You have until 10th November to tell the Commission your own view.

Link Here –Put It In Writing – (It’s a song)

And as always, please do remember whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

* “Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.”

Charles Dickens

Never A Dull Day in Leeds. Duller Than Colombia, Mind.

Notaries in England have a role which is really Clerical at base. We establish facts, and we prepare Certificates in which those facts are set out as genuine. Our Certificates are then relied upon in foreign Countries.

In other countries, the role of the Notary is often wider than this.

A Notary in France acts in a way similar to that of the English Land Registry. S/He records local land ownerships and the transfer of land and in many areas actually stores the title deeds.

In areas of Spain, the Notary can act as a small claims court, hearing disputes and issuing legally enforceable judgments.

In many Countries and in some States of USA, a Notary can officiate at a Wedding.

But it is a new one on me, to read of a Notary actually seeking to change the Law, by Notarial certificate.

If this newspaper article is to be believed – link here- a Notary in Colombia has done just that. He has by his certificated paperwork, cleared the way for a marriage between three parties, all of them male.

Crikey.

In reality it seems to me that the Notary, who is mentioned many times on the internet as an active advocate for gay rights in Colombia, is being somewhat provocative or challenging to the government there. Of course some newspapers have picked up this action and described it as the first “three-way Gay Marriage”.

If this were really what the Notary has achieved, he has apparently wielded power more usually the preserve of an elected government.

And, opened the door to a new jurisprudence, with a lot more new questions than answers.

The Laws and Courts of most Countries, certainly in England, have been battling with matters of entitlement to assets on the breakdown of two-party heterosexual marriages for hundreds of years and there is still no consensus that any fixed and reliable resolution has been reached.

Imagine the scope for new esoteric argument about money and property and children when a breakup could be potentially three way, or one partner leaving the other two.

The reality is perhaps less extreme: it may be that the Colombian Notarial documentation is more akin to a “Pre-Nup” – a form of contract in which the three men set out the terms of their relationship in regard to ownership of property and dealing with matters such as maintenance or inheritance in the case of a future separation or death. [Bit like a partnership agreement between a firm of Solicitors? Only a bit, mind]

But headlines no doubt sell newspapers.

At any rate, Colombian Notarisations do seem to be a bit more sensational than my quotidian existence here in Leeds.

CONSENT TO TRAVEL – What is a Child?

I can perhaps also use my Blog this week to underline one point which may not occur to parents of young persons travelling abroad.

Louise and I have written on many occasions, and will do again, to bring home to our clients the need for notarised certificates of consent when children are to travel with grandparents or other adults, but not with both parents.

What we have perhaps not stressed, is what is a “Child”.

The reality is that there is no agreed international definition of the age at which adulthood is reached. We have this week noted the need to certify parental consent on behalf of a twenty year old “child” to travel alone – for the United States, where the age of adulthood in many States is still TWENTY ONE.

[Imagine how a man of twenty would feel, when he can’t get on an aeroplane because he hasn’t got a notarised “note from his Mummy”.]

Ok, here’s a song for this week Link here

As ever, please do remember whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com