Residential property
07 Nov 2017 News

Could digital technology modernise the traditional Will?

News that a court in Australia accepted an unsent, draft text message on a dead man's mobile phone as an official Will is stretching the boundaries of what constitutes someone’s last Will and Testament.

In the Australian case, the deceased’s wife applied to manage his assets and argued that the text message was not valid as a Will because it was never sent. However, the Judge said the wording of the text message, which ended with the words "my Will", showed that the man intended it to act as his Will.

In 2006, the law in Queensland was changed to allow less formal types of documents to be considered as a Will. But in Scotland, a Will still stands as a legal document by which a person - the testator - expresses their wishes as to how their property is to be distributed at death, and names one or more persons - the executor - to manage the estate until its final distribution.

The importance of having a valid Will in place is well-known. Most of us will no doubt have given some thought as to what our Wills should say regarding who should inherit what.

However, most estimates are that only around a third of Scots have actually made a Will. Are people perhaps put off by what are seen as “stuffy” formalities?

Scots law contains strict requirements for how a Will should be drafted and executed. The Will must be set down on paper and physically signed by both the testator (the person who is making the Will) and a witness. If these rules are not followed, the Will could be found to be invalid after death.

The current Scottish rules were last updated relatively recently, in 1995, but could already be said to be out of touch with modern life and our increasing use of digital technology.

This is an area that the Law Commission in England and Wales is currently looking at. Describing physical signing requirements as “outdated”, the Law Commission has suggested that the law be changed to allow notes, emails or voicemail messages to be used in place of a written Will if a court can be sure that they amount to an accurate summary of the testator’s wishes. 

These suggestions are a long way off becoming law in England and Wales, although similar rules have been introduced in countries including Canada and South Africa. Maybe in Scotland there is also scope for modernising the requirements so that, in future, Wills could be made electronically and exist only as a digital file?

However, I suspect that the traditional method of signing a Will is going to remain with us for many years yet, and will be, for many, the preferred way of recording their wishes.

There are very important concerns to be addressed before any changes come into effect, particularly around the potential for fraud, manipulation by “rogue” acquaintances or family members, and also as to how a digital Will can be accessed following death.  It may well be that technology is not quite yet developed enough to allow digital Wills to be made with confidence. 

People also tend to give serious consideration to a document before putting pen to paper, and given the significance of a Will, this thought process is important.  I imagine that for the majority of us, no digital technology will ever replace the gravity of a physical signature. 

However, if the flexibility and potential cost-saving of “electronic Wills” encourages more people to set out their wishes, and, importantly, to keep them up to date as circumstances change, then modernisation should be welcomed.  As a first step, for example, the law might evolve to allow a witness to a Will to be “present” by video conference.

It will be interesting to watch how the law in England and Wales develops and if Scots law will follow suit.  Drafting a Will by app might be a long way off, but Scots law shouldn’t rule out embracing digital entirely. 

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