This is not an accurate statement of the Law Commission’s proposals for reform of the laws that regulate the making of wills.
The Law Commission published a consultation paper on 13th July entitled “Making a will”. The consultation runs until 10 November 2017 and is looking at a number of very important areas concerning how wills are made and what makes them valid.
The complexities in the law can sometimes mean strict formality rules are not followed and the validity of the will is called into question. For example, under the existing law, a will has to be in writing and signed by the testator (the person making the will). In addition, the testator’s signature has to be made in the presence of two witnesses present at the same time, both of whom have to sign the will as witness.
The law that governs wills is derived from the Wills Act 1837, enacted exactly 180 years ago, which was the very first year of the reign of Queen Victoria. In addition, the law that specifies when a person has the capacity to make a will is set out in a case from 1870, nearly 150 years ago. So, it is clear that the law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.
The misunderstandings exacerbated by the media regarding making a will by text or voicemail have arisen because of a section in the consultation paper that deals with proposals to introduce what they call “dispensing powers”. These would enable a court to recognise a will as valid even though the strict formalities have not been observed.
A number of jurisdictions already have dispensing powers. In New Jersey, for example, it is referred to as the “harmless error” provision. In all cases, it focuses on the testator’s intention and will allow a will to be declared valid in the event of a harmless error, if doing so would give effect to the testator’s intentions.
The Law Commission, during a briefing to introduce the consultation, gave examples of some extreme cases where a dispensing power could possibly be used, but emphasised that it was likely that the courts would only exercise their powers in this way as a very last resort.
One example they gave was where someone found themselves in a desperate situation without hope of escape (for example, someone stuck in Grenfell Tower after the fires had taken hold of the building) and the only resource available to them was a telephone or a mobile phone. The Law Commission’s view was that a message sent by someone in that situation could be considered by the courts as evidence of the person’s intentions, but it is likely that other evidence would be needed to substantiate such intentions.
Another example they gave was someone who was seriously ill in hospital, who might have more immediate access to a tablet or a smartphone than to a pen and paper, and who might be more able to speak than to write. But again, the Law Commission said that the courts would probably need other evidence of the testator’s intentions, besides a text or a voicemail message, before being in a position to exercise a dispensing power.
In paragraph 5.95 of the consultation paper, the Law Commission states:
“Our tentative initial view is that the scope of any dispensing provision in English law should be drawn widely. Were a dispensing power to be introduced, there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording. Those records are all potentially strong evidence of the testator’s intentions and, as we have seen, upholding the testator’s intentions is the strongest argument for introducing a dispensing power.”
The article in the Daily Telegraph inserts quotes from the consultation paper that appear consecutively in the article, but which actually come from quite different sections of the Law Commission’s document.
The challenges of bereavement and grief affect everyone in different ways. So, bold statements in the article such as “Deathbed changes of heart could even be recorded and used to overrule an existing, valid will” are not only misleading, but could also increase confusion and anxiety in an emotionally charged area of law, when what is actually needed is comfort and certainty, and the ability to adapt to allow testators’ intentions to be honoured.