notary public red seal on legal document

There’s a conundrum at the heart of English inheritance law. Lawyers here often speak proudly about “testamentary freedom,” which is the idea that we have an almost unfettered right to make a will in favour of whomever we please. By contrast, among our neighbours in Europe, the norm is a system known as “forced heirship” whereby the law chooses your principal heirs for you and your freedom of choice is greatly reduced.

Here in the UK, if we adore our children we can make a will which sets them up for life. On the other hand, if they do not need the money (or there has been a falling out in the family) we can exclude them altogether or pioritise some other beneficiary such as a favourite charity. It is up to us.

The problem is that this great legal freedom is often not embraced by the British public. Huge numbers of people die without making a will at all – a situation known as intestacy – leaving their heirs at the mercy of the law; this is one of the issues that has led to calls for reform.

Now the Law Commission, whose job it is to help keep the law of England and Wales up to date, has embarked upon a consultation exercise to determine whether it is time to modernise the law of wills.

Will law not keeping pace with technology

A court case from Australia a few years ago illustrates another aspect of the problem. The case of Re: Yu was decided by the Queensland Supreme Court in 2013.  Before taking his own life, Yu decided to type out a will on his iPhone. After his death, this text from his iPhone was presented to the court in an attempt to get it recognised as a valid will under the law of Queensland.

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Before considering the result in this case, let’s imagine that it had come before an English court. Here, the main statute in this area is the Wills Act 1837. It states that a will must be in writing, signed in the presence of two witnesses and counter-signed by those two witnesses.

These formal requirements are very strict and even a small deviation renders a will void, no matter how obvious it is (as a matter of common sense) to see what was intended. If Yu had died in England his iPhone instructions would have been completely ineffective as a will.

Back to Australia. In Queensland, the relevant statute dates not from the nineteenth century as in England, but from 1981 and so we immediately start to feel a little more hopeful about the result in Yu’s case.

Of course, every legal system has rules about how to make valid legal documents; Australian law is no different. But Queensland’s Succession Act 1981 goes a little further; a court may treat as a valid will something that fails the basic test if it is satisfied that it was intended to be a will and that it does set out the deceased’s intentions for his or her assets after their  death.

Dispensing power for exceptional cases

This is an example of what reformers call a dispensing power: the power to ease the strict requirements of legal formality in appropriate cases, to give effect to the deceased’s wishes. In England and Wales the Law Commission is now proposing that parliament introduce such a power into English law. It would not do away with the need to make wills properly, but it would provide a fail-safe mechanism to help in exceptional cases.  

Of course, a reform like this does not address head on the full impact of digital technology. In future, we will almost certainly need a wider modernisation to acknowledge that more and more ‘documents’ are completed online and signatures are created electronically using biometrics, encryption and other digital techniques.

The Law Commission acknowledges this but believes that this technology is still changing too quickly for there to be a neat and reliable answer today. Its proposal for now is to delegate power to the Lord Chancellor to update the rules again in the future. It’s not so long ago that wills were always elegantly bound with sealing wax and ribbon; it may take the Lord Chancellor a little while to get comfortable with biometrics.

The Law Commission’s consultation period ends in November 2017; sometime after that, it will make its recommendations to parliament and our legislators will then have to decide whether to act on the proposals. In the meantime, if you are intestate it is a good idea to make a will: for your own peace of mind; for the sake of your heirs and loved ones; to benefit your favourite charity and so on.

If you did make a will years ago and haven’t looked at it since, it is wise to review it and update it if necessary.  When you do this, remember that the current law of wills in England and Wales dates from 1837.  Consult your solicitor and keep in mind that, until parliament decides otherwise, a will written on an iPhone isn’t worth the paper it isn’t written on.