While the law on wills differs between Scotland and England & Wales, there issues that will be relevant to the law on both sides of the border. This blog explores proposals down south which may impact on how wills are written, interpreted, altered and stored in Scotland.
Proposals have been put forward before the Law Society of England & Wales that call for wills to be brought into the modern world. The Law Commission has said that current rules are “unclear” and may put people off making a will. The Commission is considering whether text messages, emails and other forms of electronic communication should be recognised as having testamentary authority. The Commission has published these and other suggestions in a consultation paper, and submissions are accepted until November 10th. At the moment, around 40% of adults die without having written a will.
These new powers, if they come into force, will affect how wills are written and interpreted in a number of ways. They will allow judges to decide whether or not an electronic message is an accurate reflection of a person’s final wishes. Another proposal is to improve the test for mental capacity. The current tests are almost a century and a half old, so bringing these tests up to date seems to be an obvious step. The new test would allow for those with conditions such as dementia to make a will.
The law commissioner in charge of the consultation project, Professor Nick Hopkins, said: “Making a will and passing on your possessions after you have died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.”
“Even when it is obvious what someone wanted, if they have not followed the strict rules, courts cannot act on it. And conditions which affect decision-making, like dementia, are not properly accounted for in the law. That is not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally but will also help to give greater effect to people’s last wishes,” said Professor Hopkins.
There were weaknesses in the proposals, which the Commission identified. In particular, the need for electronic signatures to be secure and for there to be a ‘viable infrastructure’ for the storing of electronic wills.
In our opinion, the law on wills does indeed need to be updated to reflect modern life. That said, there are vitally important safeguards in place which must not be lost because of changes to technology. More than ever, people are challenging wills which mean any changes must ensure that the process of a making a will is definite and certain.
Balancing flexibility and security
The Law Commission notes that there is a balance to be struck between security, infrastructure and consistency and allowing sufficient flexibility to let people create wills using all the modern tools at their disposal.
The Commission says:
“A person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write. On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives. They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power.”
As the Commission notes, an obvious weakness is that a high swathe of potentially testamentary material may suddenly become available and, as we all know, our texts and emails may not always accurately reflect how we permanently feel.
Could the proposals increase court actions?
A will is a powerful document. It is vital that people understand the potential risks before committing their wishes to paper (or text!). If these changes are implemented, there may be an increase in challenges from disgruntled or dissatisfied relatives.
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