Bharbhage Singh

Senior Legal Assistant

Wills, Trusts and Probate

Modernising will law

Bharbhage Singh

Writing a will defines the destiny of our possessions, money and property and gives some certainty as to where those things might end up when we die. 

Research has historically always shown that the majority of the adult population in the UK does not have a will. Whilst some people will require detailed and specific tax planning and trusts advice, a great number will not, and so as part of a wide-ranging consultation on wills launched today, the Law Commission is considering proposals designed to make it easier for people to make a will.

Currently the formalities for making a will are governed by the Wills Act 1837. In order for a will to be valid section 9 of the Wills Act states that it must be made in writing, it must be signed by the testator (or someone else in the testers presence and at the testator’s direction), it must appear that the testator intended the signature to give effect to the will and the signature must be made in the presence of two witnesses.

The proposals now being considered include allowing for a will to be in a format other than in writing (e.g. an electronic document such as a text message or email or even sound and video recordings), and allowing for electronic signatures to be added to a will. It is also suggested that the minimum age for making a will should be lowered from 18 to 16 and that the test of capacity set out in the Mental Capacity Act 2005 should apply to wills.

For many of us our lives are increasingly electronically or digitally based and so there can be no doubt that bringing legal services into the digital world is a must. Allowing for electronic documents and signatures will clearly have practical benefits but care will need to be taken over how it is introduced and the hardware and software which will be needed to facilitate it. The threat of ‘cyber-fraud’ will also be an issue and very serious questions surrounding security and authenticity will need to be addressed

Whilst they are 180 years old, the formalities for making a will are there for a purpose and provide a degree of certainty as to the wishes of the testator. The risks of dispensing with these formalities could lead to a great deal of litigation and would result in the courts having to decide whether or not a document or record represents the testator’s true wishes and intentions.

Investing in and embracing technology is an inevitability but choosing the right technology and method will be key. The consultation period will last until 10th November 2017 and we wait with interest to see which, if any, of the proposals will be implemented.

Making a will does not have to be a complicated process and it is our job as solicitors to make sure the legal formalities are complied with. If you need any further information or any specific advice then please do not hesitate to contact us on 0115 9888 777.

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