Radical proposals to update the way wills are written and interpreted in the UK have been put forward by the Law Commission – including the ability to put down your final wishes by text message, email or voicemail
The Law Commission has launched a consultation into the way estates laws operate in the UK, seeking the public’s views on a number of recommendations.
Which? explores the recommendations to see how will-writing might look in the future and what that could mean for your estate.
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1. A small mistake won’t make your will void
Under current laws, a minor mistake can make your entire will invalid. All wills have to meet strict formal requirements, with no room for even the smallest of errors.
You could, for example, do everything right in executing the document – except that you step out of the room as the witness signs their name. Your will would be void and your last wishes would have no legal force.
The Law Commission proposes giving courts the power to overlook formal requirements in these types of scenarios. But that doesn’t mean anything is allowable – the judge would need to find, on the balance of probabilities, that the deceased intended the document to be their final testament.
Find out more: FAQs on will writing – all your wills questions answered
2. A text, email or voicemail might qualify as a will
Under the proposal to bypass formal requirements, the Law Commission also suggested broadening the scope of what could be considered a will – so that electronic documents, including sound or video recordings, could all be included.
In practice, this would mean that a voicemail describing your plans, or a text message, could be used as evidence by the courts of what you want done with your estate. But this would not be standard practice, the Law Commission warned – the judge would have to be convinced that this counts as evidence of your testament, a high bar to clear.
3. Your will could be electronic
In the not-too-distant future, many wills are likely to be executed electronically. Given the rapid pace of technological change, the Law Commission recommended giving the Lord Chancellor powers to make new regulations allowing for electronic wills as the technology develops.
However, the Law Commission was wary of wills being signed electronically using current systems. Until the law is clarified, it warned that wills signed electronically are not likely to be valid.
Find out more: How to make a will – what you need to do to make it valid
4. Children could make a will
Currently, you have to be 18 to execute a will. The Law Commission proposed lowering this age to 16, to recognise that 16 and 17 year olds are increasingly treated as decision-makers in other areas, like social care.
In exceptional circumstances, it suggested that even younger people should be given the right to make a will. As an example, they pointed to the case of an intelligent, terminally-ill 14 year old who wanted her body to be cryogenically frozen – against the wishes of her father.
Courts would need to decide on a case-by-case basis whether the young person had sufficient understanding to make a will that was binding.
5. Getting married won’t revoke your will
It might come as a surprise to some that getting married automatically invalidates any wills you may have previously written.
This means that children from a previous marriage, for example, may be accidentally disinherited unless a new will is made. But given there are also good arguments for allowing spouses to automatically inherit an estate, the Law Commission has called for the public to share its input.
Find out more: What to put in your will
6. Victorian-era rules will be updated
The case law used to decide whether someone has the mental capacity to write a will dates from the Victorian era. It refers to ‘disorders of the mind and delusions’ – language that doesn’t reflect the way doctors diagnose or treat mental health conditions, based on scientific research.
The Law Commission proposes instead using tests laid out in the Mental Capacity Act 2005, which would bring the law in line with modern medical understandings.
7. Witness’ family and friends could not get gifts
The current legislation prevents witnesses to a will – and their spouses or civil partners – from receiving any gifts from it. This removes the temptation for witnesses to forge a will in their own favour.
The Law Commission suggested that this should be extended to any people living with a witness, so that they are treated the same as spouses or civil partners.
The Law Commission has published these and other suggestions in a consultation paper. If you want to have your say, submissions are open until 10 November.