As antiquated law puts people off making wills, so modernising the process – keeping it a keyboard press or a camera click away – would help HNWs plan ahead, writes Olivia Minghella
The Law Commission recently published a consultation paper on modernising the law relating to Wills which, largely, dates back to 1837.
It has been suggested that 40 per cent of the adult population die without a will, meaning the intestacy rules step in to dictate what happens to a person’s property when he or she dies. The result is often not as one would intend. Apart from those immortal beings among us, this is clearly a problem to be resolved. It is believed that the outdated law is one of the things that puts people off making a will (that, and the understandable dislike of thinking about death). To give you a taster, this is law that was introduced in the same year that the use of the pillory as a punishment was abolished, the year of Charles Darwin’s first speech to the Geological Society of London, the year Dickens published The Adventures of Oliver Twist and the year Queen Victoria ascended to the throne.
One of the suggestions for the make-over is for wills to be made by video. For some, this will not be an encouraging prospect, but for other more camera-happy or theatrical types, this may be quite appealing.
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Currently, strict rules require wills to meet certain formalities in order to be valid. A will must be in writing and signed by the testator in the presence of two witnesses. In many jurisdictions, courts have a ‘dispensing’ power to allow documents which do not meet equivalent formalities to be treated as valid. Recently, for example, the Supreme Court of New South Wales used its power to order that the wishes of an elderly woman recorded by a video camera should be admitted to probate (effectively as a codicil to the will which she signed only two days previously). English courts have no such power and this can have anomalous consequences in circumstances where a ‘would-be’ testator has failed to comply with a seemingly minor requirement. This can lead to his ‘would-be’ will being rendered invalid, his intentions being thwarted and the distribution of his estate left subject to the controversial intestacy rules. In England and Wales, the only wills which can be validly made without complying with the strict formality requirements are so-called ‘privileged wills’, which can only be made by those in active military service and seamen.
A move towards electronic wills seems inevitable (and let’s be frank, a little overdue), but video wills in particular are not without risk. Existing formality requirements are designed to ensure that a Will is freely entered into and not forged or forced. Anyone who has seen the film Avatar, however, will know that a video can be very convincingly faked, with CGI and ‘dubbing’ becoming ever more advanced.Determining the date of an electronic will might also prove tricky – particularly for serial will-makers.
Another concern is that, with the rapid pace of technological advancement, any will made today would be in a format that had become obsolete by the time the will became relevant in ten, 20 or even 30 years’ time. Electronic advancements may give a whole new meaning to a holographic will.
The Law Commission is proposing that any ‘dispensing’ power introduced should specifically allow wills made electronically (by video or otherwise) to be admitted to probate, but that this power should only be exercised as a last resort. None of these advancements are likely to become law until we have technological systems safe and advanced enough to allow these hurdles to be overcome. An opportunity for the tech-savvy, perhaps?
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It is easy to see the benefits that video wills would bring: if the introduction of video wills can encourage more people to make one, this would surely be a positive step, especially given the difficulties that can arise in an intestacy situation. It has been also pointed out that some people may have easier access to a smartphone with a recording function than they would to a pen and paper (not to mention a solicitor or Will-writing service).
No jurisdiction has yet managed to successfully introduce electronic wills, and it seems that the days in which video wills are commonplace may still be some way off.
Olivia Minghella works at boutique private wealth law firm Maurice Turnor Gardner LLP
