The proposals put forward by the Law Commission have gathered both praise and criticism from across the wills and probate industry.Having recently launched a consultation on their plans, the commission has stated that the law around wills needs to ‘better reflect the modern world.’
They have suggested that rather than purely written statement of intention, electronic communication could also be recognised as a will if approved by the court.
The commission are also considering changing the test for capacity on writing a will, in order take into account issues around mental capacity as well as the rise in dementia. This includes providing doctors and other professionals with statutory guidance on assessing whether an individual has the required level of mental capacity to make a will.
Commenting on the aim and impact of the proposals was Kate Saunders. The specialist will disputes solicitor at Irwin Mitchell Private Health drew attention to the growing complexities of families making consolidation of wishes being even more vital.
“The Consultation seeks to bring wills into line with modern society asking questions about digital /electronic wills and taking into account the rise in dementia and issues about mental capacity. With modern families becoming more complicated over recent decades wills have become even more important and it is it vital that the rules are fair for everyone and protect vulnerable people from potential financial abuse.
“It asks 65 questions on detailed proposals for change, and those interested in the subject must respond by 10 November 2017, but detailed consideration of the report is needed to understand many of the questions. This includes the major issue of the capacity to make a will, which still refers back to a court case in 1869, almost 150 years ago, and does not take into account the major changes in the Mental Capacity Act 2005.
“It will be important to consider the detail of these proposals, and any legislation that is then proposed to introduce changes, as to how these plans might be introduced. Under the proposals, the courts may be given more freedom to make decisions on assets if the wishes of those making a will are clear – but setting these boundaries and definitions may involve a series of precedent setting cases over a few years before we get to a true understanding of how the laws will be applied.
She also expressed concern as to the level of security required, stressing that protective measures needed to be prioritised.
“There are also some concerns with digital signatures and how safe they may be from cyber-crime and abuse within families. Any systems will need to be built with protecting vulnerable people in mind. Questions are also raised about “Digital Assets” and feedback welcomed on any issues in the extensive digital world. This area is moving so fast it is difficult for the law to keep up, but an attempt needs to be made.”
Also sharing his views on potential security issues was Adam Draper. The partner at Access Legal stated:
“It is to be welcomed that what is a 19th century process for execution of wills is to be brought into the 21st century.
“My concern is that any modern process properly reflects the checks and balances which are in place within the Wills Act. There is considerable scope for fraud in relation to handwritten wills. There is significant additional scope in relation to electronic documents and especially so when various family members often have access to those electronic devices. By way of example what is to stop an unscrupulous relative with access to an iPad sending a message indicating that the deceased intended to leave their entire estate to them.
“Making the will making process easier may also lead to the vulnerable being taken advantage of. There is often pressure to change an existing will as the person nears their death. It is important that any changes do not make it easier for those vulnerable people to be taken advantage of.”
An issue which has been felt by many across the profession relates to the nature of electronic communication, which is arguably more fleeting than the written word. Commenting on this was Emma Louise Green, Associate Solicitor at the Wilkes Partnership. She stated: “The current rules governing the creation of Will were indeed created a significant amount of time ago. This does not necessarily mean though that they are outdated and need to be brought up to date. They are indeed strict but the reason why they are strict is to protect testators and beneficiaries and ensure that the Will that is created does indeed contain their wishes and there are two witnesses who can provide vital information relating to the execution.
Our specialist Contentious Probate team has concerns over current proposals to somehow incorporate voicemail messages, emails and text messages into the Will making process and indeed to actually be counted as a valid Will instead of a document signed by the testator and the two witnesses. Whilst most individuals rely on emails, text messages and voicemails in every day life, such methods of communication can be ambiguous and vague not to mention being susceptible to interception and alteration. Our initial feeling is that it is going to be very difficult to be able to accurately check that the instructions and information that is being received is actually from the testator concerned and that the testator is free from influence and has the capacity to give those instructions if the only contact with the testator is electronic.
Whilst the reasoning behind the proposal is to try to simplify the process, it has to be questioned whether it is actually simplifying the process if it is going to be down to a judge to decide whether someone’s emails/text messages and voicemails should be counted as a valid testamentary disposition. Now, when someone passes away, if the document presented is signed by the testator and witnessed by two independent people, the starting point will be that it is a valid testamentary document. The starting point is that a judge does not need to be involved. The new proposal seems to suggest that judges will need to be involved when there is a body of evidence that someone tried to leave an “alternative” Will. Involving a judge is expensive not to mention time consuming and will add more pressure to an already overburdened judicial system.”
