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 email@example.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.”