The laws relating to the production of a valid will have remained unchanged since 1839. Under the present regime, a will needs to be written and signed by the “testator” as well as two witnesses in order to be valid.
In their long awaited report, published yesterday, the Law Commission has branded these laws “outdated” and called for a sweeping modernisation of the legacy regime.
They consider that the “need to comply with formalities can be a barrier to making a will” and have suggested that audio and video recordings, electronic documents and oral statements should have the power to dispense and overrule a valid will.
They state that “a person who is seriously ill in the hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than write”.
Under their proposals, judges in the High Court and County Court would have the power to decide on “the balance of probabilities” whether the text or recording is a valid expression of person’s testamentary wishes.
They consider that this power should operate retrospectively as “the date of the document may be difficult to discover in comparison with the usually straightforward question of the date of a person’s death”.
The effect of these proposals and the uncertainty created would certainly keep contentious probate practitioners busy for years to come.
In recognition of this, the Law Commission states that “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 a dispensing power”
They also acknowledge that “the large number of electronic documents that we store on our phone, tablets and computers may open up a variety of avenues by which probate could become expensive and contentious”.
Among their other proposals are a lowering of the legal age to write a will from 18 to 16 and a modernisation of the current test for testamentary capacity, known as the Banks v Goodfellow test, which dates back to 1870.
The Law Commission considered the language in this test to be “archaic” and that “recasting the test in a modern form would make it more readily understandable and therefore more easily applied”.
Their proposal is for the Mental Capacity Act 2005 be adopted as the test for testamentary capacity.
The consultation closes on 10 November and whether any of these proposals come into force, remains to be seen.