Reforming the law on wills
This article was written by Luke Watson and published in The Law Society Gazette on 5 January 2018
It must have seemed cutting edge at the time, but the law that governs the making of wills in England and Wales is now 180 years old, dating from 1837.
High time for a review then – and that is just what is happening. The Law Commission has been conducting a comprehensive review of wills and a consultation has just closed. The Commission can be expected to report back with its proposals based on the feedback received sometime next year.
So what might we see changing? Given that it was such a comprehensive review (the consultation paper was over 280 pages long), the answer could be many things.
However, there are four areas that I want to briefly focus on here – and give my predictions for how they could pan out.
Electronic wills – there has been growing talk about enabling a system of electronic wills, which actually present a fascinating conundrum. One of the key requirements of a traditional will is that it should be signed by the testator in the presence of two witnesses, with the original copy then being sent to the probate registry. It is an inherently physical process, in that it depends on all parties being present together at the same time and place.
This made perfect sense back in Victorian times and in many ways still does today. But the fact is that our world has become increasingly digital and this insistence on physical hard copies and hand signatures feels somewhat out of tune with the way our world is heading.
It seems that there is a groundswell of opinion that we need to start moving towards a system of electronic wills. The issue, however, is guaranteeing that the person ‘signing’ a will electronically is in fact that person and their signature has not been forged – or could not be forged in the future to change or revoke a will. There are various possible solutions – passwords and PINs, biometrics, digital signatures – but each of them has their issues. There is also the question of the cost of developing or embedding such technology.
Prediction One: We will eventually see electronic wills but it could take quite some time. We need to see increased dialogue between our legal regulators and the big tech companies to discuss what technologies could be used and how their security would be safeguarded over time.
Dispensing powers – in a similar vein to electronic wills, there has also been increasing discussion of wills in alternative formats or that not do not comply with all the formal requirements of a will – but where the testator’s intentions are clear. For example, a recent case that caught worldwide attention was a court in Queensland, Australia, allowing a ‘will’ that had been in the unsent draft texts on the deceased’s mobile phone. A number of jurisdictions give ‘dispensing powers’ to courts, including Australia, New Zealand, South Africa and various states in the USA and Canada.
The consultation looks favourably at this concept and quotes a commentator who observed that formality requirements should be ‘a means to an end and not an end in themselves’. Of course, there would need to be adequate safeguards in place – for example, the consultation is not in favour of accepting unrecorded oral statements. But the direction of travel seems clear.
Prediction Two: Dispensing powers for courts will come into being in the future, whereby non-standard wills including emails, texts, video messages and audio recordings could be accepted as statements of a testator’s intentions.
Minimum age – the minimum age for making a will is currently 18, but the consultation puts forward the provisional proposal to reduce this to 16. Given that 16 and 17 year olds are able to marry, join the army or live alone, this is another proposal whose time feels like it has come. A secondary possibility is that rather than reduce the age limit wholesale, it may be possible for a 16 or 17 year old to make a will in specific cases – such as when the individual has sufficient understanding of the process to do so, which could be determined by a court or professional will-writer.
Prediction Three: The legal will-making age will be reduced to 16. After all, in Scotland the minimum age is already 12.
Privileged wills – the consultation also looks at the issue of what we call “privileged wills”. Where a “soldier”, “airman” or “seaman” is on actual military service or at sea that person can make a will informally, even orally.
This is because they may be facing a specific risk of death and also are in circumstances where they are simply not in a position to make a will in ordinary circumstances.
The consultation proposes retaining privileged wills for active military personnel. It also proposes to include civilian contractors deployed in combat zones – this would appear to be a very sensible addition.
However, I disagree with one of the consultation proposals. The document mentions civilians engaged in dangerous occupations such as firefighters – but in the end does not propose including them or other emergency service workers (police, ambulance, coastguard etc) within the scope of privileged wills.
In my view, there is a real case for enabling emergency workers, in certain circumstances, to make a privileged will. These circumstances would need to be defined but I believe should be explored.
Prediction Four: Privileged wills will be confined to active military personnel, but not extended to emergency service workers.
Whatever the outcome, the Law Commission is to be commended for undertaking a truly thorough and comprehensive review of the law relating to wills. We will wait to see the shape of the final changes, but the signs are that the laws around will-making will be modernised in some significant ways.