Victorian Legislation Deterring UK Adults From Making A Will
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 have focused on ways to update the Wills Act of 1837 and the currently used Banks v Goodfellow testamentary capacity measure from 1870.
It is anticipated that the report will propose clear changes on the test for capacity to take into account the modern understanding of conditions like dementia. This will help to create a practical guidance for doctors and other professionals when making a capacity assessment for Wills.
In 2017, the Law Commission’s consultation paper proposed giving the court power to recognise where the formality rules haven’t been followed but the Will-maker has made their intentions explicitly clear.
Although the Law Commission have delayed their Wills Findings until some point in 2019 as the Government prioritised a report into marriages, it is clear that any Victorian legislation concerning the express wishes of a person’s assets when they die will be somewhat defunct in a modern world with new technology and the rise of modern family structures.
Currently, Aretha Franklin’s estate has been shaken as three handwritten Wills have been found in notebooks and paper scattered around the Queen of Soul’s home. Whilst the family were amicably dividing the estate under intestacy rules, the handwritten Wills has proved a controversial stumbling block which could cause contention and encourage some to fight the fact that the Wills has failed to adopt legal formalities.
Whilst Franklin’s long-term lawyer has filed the Wills for consideration because it has, at the very least, been signed by the testator, even if the other witness-based formalities have not been followed.
There have been multiple cases around the world look at the testator’s intentions, regardless of how the document was produced. In particular, Australia have proved long-term advocates of Wills that have bypassed legal formalities, as long as:
- The item pertaining to be the valid Will of the testator is considered a document;
- It purports to state the testamentary intentions of the deceased;
- The deceased intended the document to form their will.
In 2012, the Alan Yazbek v Ghosn Yazbek & Anor  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 have admitted and validated a range of Wills using modern communication methods. In the case of Re: Yu , 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 , an unsent email Will, made moments before Mr Nichol committed suicide, was permitted as it made the testamentary intentions of the deceased clear.
Even in cases using video messaging, Mellino v Wnuk & Ors  or Re Quinn , the modern method of communication was considered as a valid Will despite the fact that nothing was written down and formally signed.
The modern world no longer exclusively uses paper and pen when communicating. In fact, society is becoming paperless; UK commuters have the option of using a nationwide e-ticketing service by the end of 2019 and over 38% of people opt to use a paperless transaction system wherever possible. Even the mortgage process is becoming paperless as block chain increases its reach.
Electronic Wills are already increasing in their popularity with a leading company writing 1 in every 25 UK Wills last year and aiming for a 10% market share by the end of 2019.
The Law Commission will advocate reducing the minimum age of making a Will from 18 to 16 in the hope of normalising making regularly updated Wills from a young age. As the consultation process becomes a set of recommendations, it is hoped that dispensing powers widen so that an unconventional Will, written in difficult circumstances, is accepted as the valid and final wishes of the deceased.
Why then, is the UK struggling to catch up with the rest of the world? For many, the formal act of the testator signing a hard copy of their document in the presence of two witnesses at the same time is impractical and inconsistent with the advanced uses of technology in the modern world. As the adult UK population remains reluctant to make a Will under the current archaic laws, it is imperative that changes are made to consider the way we communicate in the age of ‘Insta’ and hashtags.
Will these changes lead to an increase in contested Wills and probate cases? Or, will these eventual changes encourage more people to make a valid Will?