Are Informal Electronic Wills the Future?

Background

In 2014 the Law Commission of England and Wales announced it was going to review the law relating to Wills with a view to encouraging more people to make a Will and reduce the likelihood of Wills being challenged.

The Law Commission was concerned that the current law (based on the Wills Act 1837, and testamentary capacity based on the Victorian era case Banks v Goodfellow) is out-dated in terms of technological and other changes. The Law Commission recently produced a consultation document suggesting the relaxation of the required format for Wills. (It will also consider mental capacity in the light of what we know today about dementia and the possibility of reducing the age limit to 16.) It proposes that the courts could consider a variety of records including voice messages, texts and emails to determine intentions. A draft bill is expected in 2018. Some powers already exist in Canada, South Africa, some US states and Australia. The Australian experience is likely to form part of their deliberations and some recent case law outlining many of the issues is discussed below.

Key issues

The Law Commission is concerned that the legal system needs to be updated into the digital age.  Currently, Wills need to be written and signed by the Will-maker (testator) as well as two witnesses.  The plan calls for the law to allow emails and voicemail messages to be used, with courts deciding on a ‘balance of probabilities’ whether such communications are an accurate reflection of a person’s intentions. In doing so, the Law Commission recognised risks noting, for example,

‘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 produce 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. In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious’. 

Deathbed changes might be recorded and used to overturn a written Will leading to concerns that people could be persuaded into last minute changes. Any change in the law will need to protect against undue influence. The report suggests more formal electronic Wills would be a safer option, which are also simpler to amend and update compared to paper counterparts.

In New South Wales, under the Succession Act 2006 s.6, a Will is not valid unless it is in writing, signed by the testator and witnessed by two other people. However, s.8 provides that the court can dispense with these formalities if the court is satisfied the deceased intended a document to alter or revoke a Will. The issues the court will consider are whether a ‘document’ exists, whether it records the testamentary intentions of the deceased and whether the evidence satisfies the court that when the document was produced by the deceased, by some act or words, it was intended that it should constitute the deceased’s Will.

Several recent cases have produced conflicting outcomes as to whether computer documents can be probated. In the Estate of Roger Currie (2015) and Yazbek v Yazbek (2012) the NSW Supreme Court allowed probate of ‘my_will doc’ and ‘will.doc’ respectively, but a similar document was denied probate by the Queensland Supreme Court in Mahalo v Hehir (2011). In the latter case, the judge was not satisfied that the deceased had intended the electronic document to be her last Will and that she knew it had to be signed to be enforceable.

In the Estate of Wilden (2015), the South Australian Supreme Court held that a DVD may be an acceptable document and granted probate of a transcript of that recording. Similarly, in the Estate of Wai Fun Chan (2015), the NSW Supreme Court admitted a DVD, which can be a ‘document’ under the Interpretation Act 1987 as a ‘record of information’. Although the video could be admitted to probate under s.8, the judge made these words of warning:

‘the nature of the informality attending oral statement of testamentary intentions might, in practice, present an impediment to the Court being satisfied that the requirements of the section have been met’.

Moreover,

‘the transaction costs of satisfying the Court that the requirements have been met may be an unnecessary burden on the … estate: and the informality of expression … may be productive of uncertainty as to the terms, or proper construction of a video will, with a consequential heightened risk of litigation’.

What does it mean?

The Law Commission in England and Wales has a lot to consider. The cases mentioned highlight a trend towards informal, DIY, digitally recorded Wills being admitted to probate. While demonstrating possibilities, if anything, they underline the benefits of a formal Will.

The Currie case, for example, took 2.5 years in litigation with substantial legal costs. It demonstrates that they are not a substitute for formal estate planning if you wish to avoid both the expense and the issues that can arise.

A case like Mahalo suggests the need to properly consider the enforceability of a testator’s intentions.

In Fun Chan, the court cautioned against DVD recordings. The daughters had to undertake a lengthy and expensive process before obtaining probate.

The cases emphasise that unless you record your wishes in an organised way, it is possible that your wishes will not be carried out or the estate itself could be depleted by the costs of litigation.

The cost of preparing a valid formal Will is likely to be relatively small compared to having an informal Will validated by the courts.

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