Wills Their Format and Their future
BBC News recently reported a story from Australia where the Brisbane Supreme Court ruled that a draft and unsent text message on a dead man’s mobile phone could be considered his official will. The deceased man addressed a text message to his brother leaving “all I have” to his brother and nephew, he indicated where he wished his ashes to be scattered and where he had hidden money in his house. His wife had applied to manage his assets and argued that the message could not be valid as it was never sent. However, Justice Susan Brown said that ending the text message with the words “my will” showed the intent for the instructions to be considered his will, and that the “informal nature” of the message does not prevent it being considered as a will. The law was changed in Queensland in 2006 to allow more informal documents to be considered to be wills.
Given the nature of the digital age we live in, and the loss of formality that it has brought with it, is it likely that this type of case could become more common?
As it currently stands, for a will to be validly created in Scotland, it must be:
• Made in writing
• Signed by the person making the will on each page
• Signed by the person making the will in front of a witness
However, the Law Commission for England and Wales have recognised that the formal, onerous nature of creating wills is an issue which may clash with the more informal nature of today’s society and has opened a public consultation on the formalities of creating a will. One issue in particular they are seeking opinion on is whether the court should be able to dispense with the formalities of a will where the deceased’s intention can be clearly discerned, which it might be argued is what occurred in the Australian case. They also seek to pave the way for the introduction of electronic wills. Importantly, they also wish to discover what people see as the main barriers to creating a will; is it the formality that puts people off?
It remains to be seen what the outcome of the consultation is and whether it will signal any major changes to the law down south. At the time of writing, the Scottish Law Commission confirmed that they have no plans to carry out a similar consultation in Scotland, thus the law is unlikely to change drastically in Scotland in the short to medium term. Nevertheless, in our increasingly digital dependant society, it is possible to envisage that there will be changes to the law to accommodate these issues in future. If you have any questions or would like to make a will, please contact our private client team at Hamilton Ross on 01236 627627 or 01698 337201.
This blog post was written by Julie Cloherty, LLB (Hons), currently studying the Diploma in Legal PracticeView all →