Our specialist Contentious Probate Department examine these proposals, identifies possible pitfalls and looks at the impact that these changes may have.
The current rules governing the creation of a Will were indeed created a significant amount of time ago. This does not necessarily mean though that they are outdated and need to be brought up to date.
They are indeed strict but the reason why they are strict is to protect testators and beneficiaries and ensure that the Will that is created does indeed contain their wishes and there are two witnesses who can provide vital information relating to the execution if required.
Our specialist Contentious Probate team has concerns over current proposals to somehow incorporate voicemail messages, emails and text messages into the Will making process and indeed to actually be counted as a valid Will instead of a document signed by the testator and the two witnesses.
Whilst most individuals rely on emails, text messages and voicemails in everyday life, such methods of communication can be ambiguous and vague not to mention being susceptible to interception and alteration. Our initial feeling is that it is going to be very difficult to be able to accurately check that the instructions and information that is being received is actually from the testator concerned and that the testator is free from influence and has the capacity to give those instructions if the only contact with the testator is electronic.
A Will can indeed be complicated and sometimes individuals can struggle with the process. However, deciding who should benefit on your death is often a complicated decision and various factors have to be analysed and considered. It is important that the process is not overly simplified because then key decisions may be missed and more problems will be caused as a result. For example, it is very simple for a husband to say that he wants his wife to inherit everything on his death in a text message but who would he want to benefit if his wife passed away first? What about if he had two children but only wants one of his children to benefit if his wife passed away first? What about if it is a second marriage and there are children from previous relationships? Sometimes, even the most straightforward family set up requires some careful estate planning. Can such decisions be properly made via electronic communications?
Whilst the reasoning behind the proposal is to try to simplify the process, it has to be questioned whether it is actually simplifying the process if it is going to be down to a judge to decide whether someone’s emails/text messages and voicemails should be counted as a valid testamentary disposition.
Now, when someone passes away, if the document presented is signed by the testator and witnessed by two independent people, the starting point will be that it is a valid testamentary document. The starting point is that a judge does not need to be involved. The new proposal seems to suggest that judges will need to be involved when there is a body of evidence that someone tried to leave an “alternative” Will. Involving a judge is expensive not to mention time consuming and will add more pressure to an already overburdened judicial system.
The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with an uncertain or ambiguous Will. If you wish to discuss any aspect of Will drafting or interpretation issues please get in touch with Kevin Lynch on 0121 233 4333 or via email on [email protected].