Should The British Wills Act 1837 Be Reviewed?

As technological advances have evolved rapidly in a modern world, there have been multiple cases around the globe whereby testator’s intentions have been allowed, regardless of how the document was produced and bypassing legal formalities.

Those cases which have been put under the microscope, particularly in America and Australia, has highlighted a need to change the legislation to the British Wills Act 1837.

Last month, tensions were rising over the Queen of Soul, Aretha Franklin’s estate. Her lawyer had recently filed handwritten Wills, following the discovery in Franklin’s Detroit home, for consideration because it has been signed by the testator, even if Franklin has not conformed to the witness-based formalities.

Franklin’s family have since been arguing with each other over the validity and requests of Wills allegedly handwritten by Franklin before she passed away.

In 2012, the Alan Yazbek v Ghosn Yazbek & Anor [2012] allowed a Will written and saved as a Word document to be used as a valid Will. Although it did not use an electronic signature style font that differed from the main text, it was a clear document with transparent testamentary intentions.

Since that time, Australia has admitted and validated a range of Wills using modern communication methods. In the case of Re: Yu [2013], prior to committing suicide, Karter Yu wrote and saved a number of farewell messages and a Will in his iPhone Notes. In a similar case Nichol v Nichol [2017], an unsent email Will, made moments before Mr Nichol committed suicide, was permitted as it made the testamentary intentions of the deceased clear.

In 2013, the Law Commission conducted a public consultation on the contents of the 12th programme of Law reform. Based on the consultation, leading representative legal bodies highlighted where the Victorian law is failing modern society. In particular, the areas of law where testamentary capacity and formalities were considered. Since the initial consultation, the Law Commission has focused on ways to update the Wills Act of 1837.

With advanced uses of technology in the modern world and the fact the adult UK population are still reluctant to make a Will, professionals in the industry comment on whether they think the Wills Act 1837 needs to be reviewed to fall in line with recent changes abroad.

Samantha Hirst, contentious probate solicitor at Ridley and Hall Solicitors Legal Limited, said:

“It’s estimated by the Law Commission (which recommends law reforms) that 40% of adults die every year in England & Wales without making a Will.  This means around 200,000 – 250,000 estates every year are distributed under the rules of intestacy.  As a contentious probate solicitor, I often see the unintended result that the intestacy rules can have; especially cohabitees who can be left with nothing when their partner dies. This means that family members end up having to bring a legal claim against a deceased loved one’s estate which can be very stressful and expensive.  So, I can see why the Law Commission is exploring ways to encourage more people to make a Will.

“With the global pressure to embrace technology, it is inevitable that the notion of electronic Wills is being considered in England & Wales.  The Law Commission’s 2017 Consultation Paper is very vague on how this could be implemented. There is debate as to whether suitable software is currently available.  In America, where similar discussions are taking place, Governor Scott summed up the concerns over “E-Wills” succinctly.  He said it will be important to find “the right balance between providing safeguards to protect the Will-making process from exploitation and fraud while also incorporating technological options that make Wills financially accessible.

“At the moment there are strict rules set out in the Wills Act 1837 which have to be followed to ensure a Will is valid.  If the rules are not followed then generally the Will is invalid. Sometimes it’s possible to ‘rectify’ or ‘construct’ a Will – depending on how it’s worded. But there are certainly many occasions when a family will be frustrated and distressed because a Will that a loved one made thinking it was valid, is in fact, not. The law could be changed to create something called ‘a dispensing power’; this would enable a court to order that a Will is valid even though it does not comply with some of the formalities.  If this change were to be implemented, a broad range of documents could be presented to a court in support of a Will that didn’t appear to be valid.  However, it would still be up to the court to decide whether on the ‘balance of probabilities’ i.e. more than 50% likely, that the document was intended to be the deceased’s last wishes.

“The current law is outdated – the fact that the current legislation dates back to 1837 is a good clue about that! So I believe that it’s right that consultations are taking place with a view to updating the law.  But it’s vital that a balance is struck between respecting the last known wishes of someone who has died versus ensuring that proper safeguards are in place to protect Will makers. We should not forget that Wills are very much open to the possibility of abuse; technology, as we know, can be a double-edged sword.”

Ryan Taylor, contentious probate solicitor at Anthony Gold, said:

“The Wills Act 1837 sets out the formalities for a valid Will in England and Wales. The complexity of dealing with estates, and the interpersonal relationships at play, mean that the formal requirements of a Will should remain in most cases.  These requirements provide protective mechanisms to allow us to be certain of the testator’s wishes and the veracity of the document after they have died. The downside is that the strict requirements of the Wills Act can also see some Wills made unusable, and does not help friends and relatives where the deceased has expressed his or her wishes but then died intestate.

“One of the requirements for a valid Will is that the testator must have intended the document to be a record of their final wishes. It is this intention that some other jurisdictions focus on when determining whether an informal Will should be accepted as a valid testamentary document. Recent cases in Australia of iPhone notes, unprinted Word documents and videos have highlighted how Courts there will use their discretion to consider whether the intentions of the testator should be upheld, even when not formally recorded in a Will.  This highlights how the common law can adapt to societal changes, but it does not come without risks.  The Australian cases to date deal with clear and specific circumstances (particularly where testators were aware of their likely impending demise), but there is a risk that allowing any expression of wish by a testator to replace the strict requirements of the Wills Act could lead to an explosion of litigation in this area.  It is already a highly emotionally charged area of work, and whilst updating the law is always welcome, it should only be undertaken with a high degree of care.

“However, when too many people either do not have a Will at all, or may not have had it properly prepared by experts with suitable experience, it might be appropriate that updates to the law dealing with Wills and estates are made in order to enable Courts to carry out the known last wishes of a testator.”

Meg Abdy, Development Director at Legacy Foresight, said:

“All too often British people find the idea of writing a Will too daunting, expensive ortime-consumingg – so put it off until it’s too late. Allowing new forms of media, whether by text, email, voicemail or even twitter, could help unlock will-making, enabling more people to express their final wishes. This in turn could be beneficial for the charities we work with, if it led to more charitable gifts in those extra Wills. But there would still need to be stringent controls in place, to ensure that the new channels are not abused by third parties for their personal gain. That’s the challenge the Law Commission faces.”

Tara McInnes, Senior Associate at Shoosmiths LLP, said:

“In England and Wales for a document to constitute a valid will it must comply with section 9 of the Wills Act 1837.  This sets out various formalities, which need to be complied with otherwise the Will cannot be valid.  These include being in writing and being witnessed by two independent witnesses.  Whilst it is possible In England and Wales to ‘prove’ a copy Will it is not possible to ‘prove’ a Will that is not valid i.e. does not comply with the requirements.

“Recent case law in Australia has suggested that Australia has more discretion in relation to its interpretation of Wills than E & W.  This is because the legislation in certain states in Australia allows Wills to be ‘proved’ where they do not necessarily comply with the requirements of the Australia equivalent of the Wills Act 1837.

“In certain cases, the Australian courts are able to look behind the meaning of the document and the intention of the maker to establish whether it was intended to be a valid Will. Usually, these cases occur where there is an immediate need for a Will because of imminent death, in the form of suicide or illness.

“In the Re Yu case, the Queensland Courts considered that iphone notes could constitute a valid Will because they; met the definition of a document as set out in Queensland legislation, dealt with the property of the estate, appointed an executor and it was the maker’s intention to make a Will.

“The legislation in Australia provides the courts with discretion to interpret documents as Wills even where the necessary formalities are not met.  Our legislation does not provide the courts with the same discretion, here the legislation is black and white, either the Will is valid (as it complies with the formalities) or it is not.  In light of the advancements in technology since the Wills Act in 1837 and societal changes i.e. more people owning property than in 1837, I would suggest that it is now necessary to review and amend our current legislation to provide the courts with the same level of discretion as the Australian courts.  If such changes are made, and in order to avoid such a system from being abused or subject to fraud, the court would need to put safeguards in place to ensure that the maker of the ‘document’ intended it to act as a Will, coupled with a strong reason i.e. imminent death as to why they cannot make a valid Will.”

Charlotte Ponder, Legal Director at Countrywide Tax & Trust Corporation Ltd, said:

“Yes, we think it is right that British law is reviewed to fall in line with recent changes abroad – but the Law Commission has of course now consulted on this and will make changes as soon as technology allows.

“So yes we hope to see changes as quickly as possible but considering how slow the law moves in this area at least some steps have been taken in the right direction! Once technology allows they will look to legislate. A bit of a shame that clients will still need to come before the Courts in order to have any evidence looked at if they are looking to incorporate other documents as having a testamentary effect, but on some level, the evidence needs to be tested.

“Looking at other ways of expressing your final wishes would surely help and encourage younger testators to make Wills. But we need advances in technology to do that!”

As a Will writer, do you think it is time for the Wills Act to be revised due to technological advancements and societal changes?