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Solicitors agree to 'dispensing power' for informal wills

Monday, 13 November, 2017

The Law Society of England and Wales has provisionally approved a proposal to give courts a dispensing power to recognise invalidly drafted informal wills.

The proposal was included in a discussion paper issued by the Law Commission, on which consultation ended last Friday (10 November 2017). It pointed out that the law of wills in England and Wales is 'largely Victorian', being based on the Wills Act 1837 with minor amendments and extensive case law. Courts should instead be able to dispense with the formalities for a will, it said, and recognise wills where the deceased's testamentary intentions are clear – including wills sent via an electronic message or audio recording.

This is referred to as a 'dispensing power', and has existed in some common-law jurisdictions for decades. The controversy was boosted in October when an Australian court ruled that an unsent text message, drafted by a man just before he killed himself, counted as a valid will.

The Law Society has long supported the introduction of dispensing powers, as well as reform of the law concerning mental capacity – currently determined by the Banks v Goodfellow test dating from 1870. It has now reiterated this support in its consultation response.

'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', commented Law Society president Joe Egan. 'We support efforts to simplify the process of making a will and we acknowledge the need to start looking at technology to support existing practice.' There are, however, 'issues we will need to work through to ensure wills made online can be proven valid', said Egan.

However, the Institute of Legacy Management's (ILM) response to the consultation criticises it for paying insufficient attention to the problems of digital wills. It said that relaxing the laws about what makes a will legally valid potentially creates uncertainty about what constitutes a will, and therefore the opportunity for a greater number of challenges.

The ILM also noted that the issue of people writing wills online 'is having an impact now and requires considerable consideration, fast'. It is calling for tighter regulation and standardisation of online will-writing platforms, along with the setting up of a national wills database incorporating a registration system to deal with revoked, lost or destroyed wills.

Sources