Changes to the Wills Act
– what could this mean for you?
Stephanie Kerr, a solicitor specialising in inheritance disputes at regional law firm Napthens, considers some of the issues which may arise if the Wills Act is reformed
It is extraordinary to consider some of the obscure laws still in force which make seemingly harmless acts illegal…such as shaking a carpet on a London street! Equally, some of the more rational laws we use on a daily basis, came into effect in very different times from those we now live in.
In 1837, the current legislation relating to Wills came into effect. Despite 180 years having passed, the Wills Act 1837 is still respected legislation setting out the requirements for a valid Will, however the way we communicate and record our daily lives has changed considerably since this time.
Although we now communicate by telephone, text, through apps and on social media, the 1837 law states that our Wills must still be made in writing and signed by the person making the Will in the presence of two witnesses.
The consultation process
The Law Commission has begun a consultation to determine whether the law ought to be modernised to take into account advances in technology. It is considering whether electronic documents such as texts, emails and audio/video recordings should persuade the Court to override an existing written Will.
Issues to consider
A review of current laws could make it easier for those who cannot physically write or speak to a solicitor due to illness or frailty. However, this could result in a number of issues if reforms are brought into effect:
• Some households have several electronic devices, each storing numerous files. The task of reviewing and cataloguing all electronic records to see if someone has made an electronic Will could be a considerable burden.
• Given the ease of access to electronic devices, there would need to be adequate checks in place to confirm the person actually created an electronic document. After all, not many people ask someone to witness the sending of an email.
• Electronic records are relatively easy to delete, allowing the potential for fraud, especially where a person is vulnerable or has allowed someone else to access their device.
• Disputes could be significant. Even in cases of written Wills, the solicitor responsible for drafting the Will can be asked to prepare lengthy witness evidence, despite their legal knowledge. In cases where electronic documents are involved, beneficiaries could dispute the meaning or context of words.
• The costs of examining electronic documents and the hidden properties of a document can be substantial, especially in cases where a party alleges tampering or fraud.
The Law Commission’s consultation on the potential reform of the Wills Act 1837 closes on 10th November 2017.
Stephanie Kerr is a solicitor in Napthens’ disputes and litigation team based in our Preston office
7 Winckley Square, Preston PR1 3JD