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Could a text message or email become your Will?

The Government has recently announced they are looking to completely overhaul the way Wills are made.

Under present laws, which date back to 1839, Wills need to be in writing, signed by the person making the Will as well as two witnesses.

Currently where a Will no longer reflects the wishes of the person making it and they wish to change it they have to make a new Will signed by them and two witnesses for the change to take effect. This often precludes last minute ‘changes of heart’ being honoured when often there is not enough time to comply with all the formalities. In many cases this creates an unfair situation.

The Law Commission agrees and has branded the current system ‘outdated’ and recommends it be revolutionised to keep up with the digital age.

The proposed plans call for the law to be relaxed to allow notes, emails and voicemail messages to be used in place of a written Will.

The new powers would allow Judges to decide “on the balance of probabilities” whether a recording or note is an accurate summary of a person’s wishes.

So called last minute Deathbed ‘changes of heart’ could even be recorded and used to overrule an existing valid Will.

While revolutionary for the UK, the new proposed powers already exist in Australia, Canada, South Africa and several US states.

The consultation document says of the proposed change, “there are strong arguments that it should apply not only to traditional written documents, but also where testators express their post death intentions in an electronic format, as well as in an audio or audio-visual recording.”

The consultation adds, “A person who is seriously ill in hospital may have more immediate access to a tablet or smart phone than to a pen and paper and may be more able to speak than to write.”

While the consultation is a welcome sign that the Government is keen to update outdated laws to keep up with the modern digital age, caution is required. It is not hard to envisage Will dispute lawyers trawling through emails and texts after someone’s death to try and find evidence of a change of heart. Additionally, unless safeguards are put in place, older and more vulnerable people might be unfairly pressured into last minute changes of heart by unscrupulous relatives or friends.

As is often the case with new proposed legislation a balance needs to be struck between the current and new system.

The consultation will run until 10th November 2017 so watch this space for more news.

If you would like to know more about the issues raised in this article, then please contact Natasha McKeever in the Contentious Trusts and Probate team at natashamckeever@boltburdon.co.uk or 0207 288 4763.

You can also contact one of our other solicitors in the Disputed Wills and Probate team here.

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