The Law Commission proposal to update the law on wills has gathered responses industry wide.
Aiming to encourage the consolidation of final wishes, the commission has launched a consultation on recognising electronic communication as a valid reflection of intention.
Whilst the plans have been applauded for considering the growing complexity of families as well as mental capacity, one of the main criticisms has been in relation to safeguarding and security.
Commenting on this issue in particular was trust and succession disputes lawyer, Mark Keenan, from law firm Mishcon de Reya. He highlighted the arguably fleeting nature of electronic communication.
“..A will which sets out your last wishes needs careful consideration and reflection. The existing formal process of signing a will goes some way to provide this through its requirement of two witnesses and independent corroboration of the event.
“Emails and text messages on the other hand are often sent in haste and without much thought. We should exercise caution when over-subscribing to the pressures of an increasingly digital world where matters as important as this are concerned.
“If emails and text messages are accepted as a valid and legally binding expression of someone’s wishes, there is obviously the risk of abuse. There’s also the question of how it is going to be possible to ensure that one particular message, understood to be a person’s last wishes, hasn’t been subsequently changed by a later email or text.
“The commission has proposed a number of protections, which I would expect to be strongly supported given the increasingly elderly population who are susceptible to financial abuse. We have certainly seen an increase in cases involving financial abuse of vulnerable adults.
“I would be concerned that without very careful moderation, permitting digital technology to transmit someone’s wishes will simply increase the potential for will disputes.”
The proposals have also drawn attention to the lack of awareness around wills in general. The Law Commission highlighted that 40% of people die without a will, indicating a need for greater education on their importance in general.
Commenting on this was Elaine Venning of Will Writing and Probate Services Ltd. She stated:
“It looks like this initiative, while understandable for folks facing an unusual & extreme case of making emergency provisions, could open up a whole can of worms in terms of contestation.
“We all know that such cases actually make for poor laws. Wills especially are best made when there is no immediate threat, & after proper consideration, the old principles of look carefully, plan wisely & execute properly come to mind. Otherwise good intentions are most likely to pave the road to a legal Hell. How fraud can be prevented has to be an equally important consideration.
“Safe-guarding is also a legal hot potato!
“What is needed is education, education, education. Still, too many folks have the legacy from their grand-parents of make a will means signing your life away.
“The same is true of LPAs – greater awareness is needed.”
