Dispensing Powers: Do We Need A ‘Making a Will’ Emoji?

There appears to be no imminent likelihood that Parliament will move forward with the proposals in the Law Commission’s 2017 Report on Will-making but, as inheritance dispute solicitor Stephanie Kerr of Brabners LLP explores, there is much dialogue amongst private client practitioners as to whether the existing legislation needs to be amended or relaxed to provide more flexibility for testators.

The Law Commission’s 2017 consultation considered the inclusion of dispensing powers in English and Welsh law which would allow Courts to recognise instruments other than traditional written Wills as testamentary documents.  The Commission stated:

Were a dispensing power to be introduced, there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording.”

Whilst recognising the benefits to testators who might not know the requirements for a valid Will or those who might not be able to communicate their wishes through ill-health or disability, the Commission also warned:

The potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives.  They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power.  In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious.”

Despite the potential for increased litigation, the Commission concluded that

On balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power.”

Having regard to the wealth of evidence that might be considered in such an application to the Court, there is scope for a wide range of outcomes.  Several jurisdictions in the Commonwealth already have the benefit of dispensing powers and the approach by the Courts has led to some surprising decisions.

New Zealand:

  • A Will which had been prepared 6 years before death but not signed – accepted as a Will.
  • A Will on a computer which had not been printed – accepted as a Will.
  • Part of a suicide note – accepted as a Will.

Canada:

  • Writing on a McDonalds napkin – accepted as a Will.

Australia:

  • A document saved on an iPad – accepted as a Will.
  • A codicil on a DVD – accepted as a valid codicil.
  • Writing on a beer carton – not accepted as a Will.
  • An unsent text message with a smiley face emoji – accepted as a Will (Re Nichol).

Emojis

Several jurisdictions have found the use of emojis to be relevant in criminal proceedings, especially in cases involving threatening behaviour.  Therefore, it would be inconsistent for civil courts not to address the relevance of emojis and text message abbreviations.

In the 2017 Australian case of Re Nichol noted above, the Supreme Court of Queensland found that the informal use of a smiley face did not invalidate the text message as a Will.

Justice Peter Jackson had used emojis a year earlier in his High Court judgment in family law proceedings, adding emojis for the benefit of the minors in the dispute which involved Lancashire County Council.

One of the difficulties that might arise if dispensing powers are brought into effect is how the judge should analyse the use of symbols and text abbreviations.  The Court may need to be assisted by expert evidence on the general meanings of emojis, but should perhaps also consider the subjective context and the specific use of emojis by a particular testator.  There is also the risk that a misused emoji in a text message or email could result in an outcome not intended by the testator, in that a Will may not have been intended, nor were the consequences of the Court’s interpretation of the symbol used.

What next?

Both the Courts and legal professionals have been compelled to embrace the use of technology in recent months.

It seems increasingly likely that if law reform eventually provides dispensing powers to the Courts, not only will alternative communications and new methods of documenting wishes need to be considered, but the Courts will also be required to evaluate and analyse the meanings of words, text message abbreviations and emojis when asked to exercise dispensing powers.

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