Texts messages, emails and other electronic communications could be recognised as a valid will in exceptional circumstances under proposals to modernise “Victorian” inheritance rules.

The Law Commission, which helps advise ministers, has proposed a new power allowing the courts to recognise a will that would not be valid under existing rules, but where the will-maker has made clear their intentions.

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One example could be the family of a car crash victim – who has not made a formal will but has expressed their intentions in electronic or other messages – applying to a judge to have those communications recognised as a formal will.

Noting that 40% of people die without making a will, the independent Law Commission said the “Victorian” rules need updating because they are “out of step with the modern world” and are “failing to protect the vulnerable”.

It has launched a consultation on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions such as dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.

The Law Commission acknowledged that the proposals could present problems but ultimately recommended them, saying: “We note that the potential recognition of electronic wills via a dispensing power is a double-edged sword.

(Nick Ansell/PA)
(Nick Ansell/PA)

 

“On the one hand, it seems essential that the power be applicable to electronic documents. Testators (people making a will) who do not follow the formality rules – either through ignorance of them or necessity – are increasingly likely to use electronic means.

“For example, a person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.

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“On the other hand, 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.

(Dominic Lipinski/PA)
(Dominic Lipinski/PA)

 

“While there are arguments on both sides, we take the view that, on balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power.”

Law Commissioner Professor Nick Hopkins said: “Making a will and passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.

“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.

“That’s not right and we want an overhaul to bring the law into the modern world.”

The consultation closes on November 10.

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