On 9 November 2017, the Law Society said that if a person has expressed their final wishes in a format other than a legally valid Will, the Courts should be able to recognise those wishes.
The Law Society was responding to the Law Commission’s consultation into Will reform. The consultation closed on 10 November and will later be assessed by the Government. One of the more controversial suggestions was to give the Courts a “dispensing power” to recognise a Will in cases where the normal formalities for making a Will have not been followed, but where the testator has made their intentions clear. It has been suggested that the Courts should also recognise a Will sent in electronic form or audio recording.
The Law Society’s stance on this matter is no doubt influenced by the fact that over 40% of people in the UK die without making a Will and is motivated by a desire to make the process simpler and more accessible to the public. The President of the Law Society has said: “The lack of a formal Will should not restrict a Court from respecting someone’s final wishes when those can be proven – with appropriate safeguards against fraud”.
Our concern is the President’s catch-all caveat at the end of his statement “with appropriate safeguards against fraud”. It is difficult to envisage exactly how these new safeguards will be drafted and how they will work in practice. The existing laws have been honed and developed over the last two hundred years and the formal requirements for a valid Will are there specifically to limit the potential for fraud.
The worry here is that if these proposals go through, we are likely to see an increase in fraudulent claims against peoples’ estates, as interested parties are allowed to admit any scrap of paper, email, tweet, and so forth to Court as supposed evidence of the deceased person’s wishes. In some cases it would be impossible to tell who wrote the words, or when. Similarly, just think of the clash between the last minute death bed email, tweet or Facebook update (again written by whom?) and the most recent valid Will. It was just such a problem that the Wills Act 1837 was drafted to address in the first place.
The current proposal to allow any document, in any form, to act as a Will would greatly increase the potential for fraud and disagreements between competing beneficiaries. The only people who could possibly benefit from this change would be contentious probate practitioners who will have to sort out the resulting mess. The families would be left with a legacy of conflict and bitterness.
Although we are mindful of the fact that 40% of people currently die without having first made a Will, we disagree that this is a symptom of a broken legal framework. The law is perfectly fit for purpose. What is needed, rather, is more information, education and more engagement with the process by the public. Making a valid Will is a process that is entirely accessible and in most cases not as complicated as people think.
If you would like to make a will, or amend an existing one, please get in touch.