Digital Wills For The Digital Age?

Brisbane Supreme Court ruled this week that a draft and unsent text message detailing how a man wanted his estate to be divided on his death was a valid Will.

The draft text message stated that the individual wanted his estate to be divided equally between his brother and nephew on his death and gave instructions as to where his cash and other assets were held. The Court stated that the wording of the text showed that it was the individual’s intention that this was how his estate should be divided on his death and that the text had at the bottom of it “my Will”. However, the individual’s wife argued that the text message was not a valid Will under law. Usually, a formal Will in Queensland must be typed or hand written and signed in front of two witnesses in order to be valid. However, in 2006 the law was loosened to allow more informal types of Wills that show the clear intention of the individual to be accepted as Wills.

Closer to home, the English Law Commission has only recently launched a consultation into modernising the law surrounding Wills south of the border. This will not affect us in Scotland as we have our own separate legal system, however, it may give an indication of what the Scottish Courts might also accept as Wills if we change the law in the future.

The days when people would carry around a pen and note pad are essentially extinct. The smart phone is now everyone’s notepad, diary, address book and almost every other tool you will ever require. However, the law concerning what is a valid Will in Scotland has never been altered to include anything other than documents or items signed in ink. With technology advancing around the world at an incredible rate every year, the question is - why should a Will only be valid if it is signed with ink?

The new proposals from the English Law Commission discuss the possibility of electronic Wills with electronic signatures being accepted in England. It also proposes the use of texts, emails, videos or voicemails as all being potentially regarded as parts of Wills. It is suggested that it may then be left for the Court to decide, if for example, the contents of a voicemail or email represent a person’s intention to leave an individual certain property on their death.

But what difficulties could these new forms of Wills give rise to? With new forms of technology being created every week, a set of common rules would be hard to arrive at. Making it easier for individuals to leave a Will through the use of technology has to be balanced with ensuring that those same individuals are still protected from the influence of others or from fraud.

The main issues will no doubt be debated over the coming months in England and we will certainly be keeping an interested eye on developments. For now though, it looks like pen and paper still has a role to play in Scotland.

Chris Gardiner is a Solicitor in our Private Client Department. If you have any questions regarding making a Will, please contact Chris or a member of the Private Client Department.

Categories: Private Client

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