Times are changing. Previously, people would purchase a newspaper to learn of the daily news – now many access the news almost instantly online. People would attend their local bank branches to deal with their accounts – now many use online banking. Contracts used to be printed and physically signed – now many companies will accept an electronic signature.
So what about Wills? Are they keeping up with the times?
A Will is arguably one of the most important documents you will ever sign. You work hard throughout your lifetime, and this document dictates who you wish to inherit this estate. It also nominates a trusted individual to administer this estate.
The Requirements of Writing (Scotland) Act 1995 sets out what is currently required to make a Will valid. This came into force on 1 August 1995, and applies to all Wills prepared after this date. Please note different rules apply to Wills before this date.
The 1995 Act requires Wills to be in writing, with every page signed by the individual, and for the final page to be signed by a witness. The name and address of the witness requires to be provided, as well as the date and place of signing. The person making the Will must have capacity and must not be subject to any undue influence.
Under the current law, a text would not be considered to be a valid Will. So should the rules be relaxed to allow Wills to enter the digital age?
This was recently considered in France. A man was going through a divorce, and sent a text to his sister saying that he wished for his mother to get a share of his estate, rather than his wife. The mother sought to rely on the text message after his death, however the Court refused to allow this. The Court advised that "a Will can only be valid if it has been written by hand, dated and signed" under France’s civil code. This is to "minimises the risk of forgery and mistakes".
Interestingly, this can be contrasted with another relatively recent case in Australia. A man had prepared a text message to his brother, advising that he wished to give “all that I have” to his brother and nephew. It contained various instructions with regard to his estate, and ended with the words “my will”. The message was never sent. The draft was discovered after his death. His wife sought to deal with the estate, arguing that the text was not valid, however the Court disagreed with her. They held that the wording of the text demonstrated that he intended for the text to be his Will.
Generally, Queensland law requires a Will to be written and signed by two witnesses. The rules were recently relaxed to allow less formal documents to also be considered as a Will.
There seems to be no current plans to relax the rules in respect of Wills in Scotland, however the Law Commission for England and Wales is holding a public consultation about reforming the law of Wills. The Law Commission is consulting on proposals such as allowing the Court to dispense with the formalities for a Will when it is clear what the deceased wanted, and they wish to “pave the way” for the introduction of electronic Wills. It will be worth keeping an eye on the Law Commission’s conclusions and any potential reform.
Whilst there may be benefits in amending the law to relax the standards required to hold a document as a valid Will, this would have to be done in a very careful and considered manner. There would need to be safeguards in place. Most Wills are prepared by an individual with their own free will and they are clear in their intentions, however in very rare cases there may be individuals who lack capacity or who are being unduly influenced into preparing their Will a certain way. There are currently strict rules to protect vulnerable individuals and similar safeguards would need to be put in place to ensure any digital Wills can be relied upon should they be introduced.
Blog by Amy Wardrop, Solicitor