Could a text become your will? The plans to revolutionise 'outdated' legacy system

People will be able to use voicemail and text messages to make their wills, under a radical overhaul of inheritance laws proposed by the Government’s legal advisors. 

The Law Commission has branded the current legacy system ‘outdated’ and recommends it be revolutionised to keep up with the digital age.

Under present laws, which date back to 1839, wills need to be written and signed by the ‘testator’ as well as two witnesses in order to be valid.

The commission suggests those rules are “unclear” and “outdated”.

The plans drawn up by the Commission  call for the law to be relaxed to allow notes, emails and voicemail messages to be used in place of a written will. 

Under the proposals, new powers would allow county and high court judges to decide “on the balance of probabilities” whether a recording or note is an accurate summary of a person’s wishes.

Deathbed changes of heart could even be recorded and used to overrule an existing, valid will. 

The consultation document says that “there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording.”

But the Commission admits that the changes could add to family arguments as possible beneficiaries scour their relative’s communications for evidence that they had changed their mind.

The consultation adds: “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.”

The powers already exist in Australia, Canada, South Africa, and several US states. 

Law Commissioner Professor Nick Hopkins said: “Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it.”

But experts urged caution amid concerns that older people could be pressured into last-minute changes of heart. 

Caroline Abraham, charity director of Age UK said: “Whilst we welcome this public consultation, any proposed changes must not create further barriers for people who wish to plan ahead, and ensure that older people are able to make their own decisions wherever possible, free from pressure and coercion.” 

Elizabeth Neale, partner in the private wealth team at law firm Bircham Dyson Bell, cautioned that weakening the current strict rules could have “worrying” implications for vulnerable people. 

She added that there could be “pressure on people to write something down or make a voicemail”.  

Professor Hopkins added: “Any new law would protect vulnerable testators against possible undue influence, and certainly if there was any suggestion that that had been exercised, the court isn’t going to use the dispensing power. But this is a consultation, so if anyone has those concerns, they should let us know”.

The proposals also suggest changing the law about mental capacity to make it easier to assess whether someone with dementia is able to make a will.  

The current law dates from an 1870 case which provides when someone is making a will that “no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property”. 

The consultation adds that the test’s language “appears archaic” and is difficult to understand for non-lawyers. 

It suggests that the Mental Capacity Act, which is currently used to decide whether someone is capable of making a decision for themselves in other contexts, be used instead.

The Commission has also suggested lowering the age someone can make a will from 18 to 16. 

The consultation, which launches on Friday, will run until November 10.