Texts, emails and voicemails left by the dead could be deemed a valid will in the future if proposals made by the Law Commission are adopted.
The proposal asked courts to recognise a will that would currently not be considered valid but make the same intentions all the same.
For example, if a victim of a car accident explained their plans for when they die via text message, that would have to be seen as a formal will.
So in theory you should think twice before making drunken promises at 2am after a night of boozing.
In a consultation document, the Law Commission said:
We note that the potential recognition of electronic wills via a dispensing power is a double-edged sword.
On the one hand, it seems essential that the power be applicable to electronic documents.
Testators (people making a will) who do not follow the formality rules – either through ignorance of them or necessity – are increasingly likely to use electronic means.
For example, a person who is seriously ill in hospital may more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.
On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives. They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of dispensing power.
In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious.
While there are arguments on both sides, we take the view that, on balance, electronic documents and audio and audio=visual recordings should fall within the scope of the dispensing power.
Law Commissioner Professor Nick Hopkins said:
Making a will a passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.
Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.
That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify thing legally but will also help to give greater effect to people’s last wishes.
Interesting times ahead.