Will Law in The 21st Century: Should We Be Texting Our Wills?
Earlier this month it was revealed that the Law Commission for England and Wales believe the current laws surrounding wills and inheritance are outdated, with allusions to using electronic communication as a future means of validating a will. In this article, Bespoke Support Network explores the pros and cons of implementing our wills via text.
Technology increasingly allows us, and leads us to expect, immediacy from almost everything we do. With consideration now being given to how we use technology to revolutionise how we leave our final wishes, we should consider whether it’s appropriate that we should.
It is commonly claimed that just 60% of UK adults have written a will by the time they die, and the implication is that even fewer have a will deemed to be valid. In an age where we are significantly more likely to communicate with each other by sending an e-mail or text message than we are to send a letter, it isn’t unreasonable to conclude that, just because a person’s last wishes are detailed electronically, they are to be deemed invalid.
To add further comment on this issue, we hear from Darren Diamond, the Director of Bespoke Support Network, who explains how the difference between paper and digital mediums needs to be addressed: “For me the answer to this hinges on being able to prove that the wishes themselves are indeed the true wishes of the will’s testator, that they were of sound mind, and that they were not under any undue influence.
“In theory, it makes trivial difference whether an individual’s wishes are committed to paper or digitally recorded. In practice, it is important that we consider the differences between paper-based and digital mediums, the advantages and disadvantages of both, and what criteria need to be enforced regardless.”
Committing your last will & testament to paper has long been the right of us all in the UK. However, all too often it is something that people know they should be doing but often due to indecision, a lack of information, or in some cases simply because it makes us have to confront our own mortality, actually drawing up the will is postponed indefinitely.
The first question regarding a change in the law is: would allowing an individual to commit their last wishes to a text message remove any of their indecision, increase their knowledge, or mean that they don’t have to think about dying? The answer to this is no, of course not. The only way to overcome any of those things is to conduct quality research, and preferably speak to a professional to discuss your individual circumstances.
If around 40% of UK adults die without making a will, could allowing a person to write a will by text message or e-mail allow some of those people to leave their wishes immediately on their deathbed or when faced with imminent life-threatening danger? Well yes, it could. However, there are a series of things we should consider in relation to those scenarios.
It is important that we can be sure that a will by text or e-mail written under those circumstances has recorded what the person actually wanted. In a life-threatening situation, or on our deathbed, there are likely to be complications making it an impractical time to give full consideration to the implications of our actions. The events unfolding around us may influence us to make a rash or uncharacteristic decision.
We must then consider undue influence. For example, it is ease of use and immediacy, which has led us to commit our last wishes to text message. These beneficial qualities could also lend themselves as an opportunity to be exploited by others who wish to pressure us to favour them for their own gain.
There are also concerns about the safety of stating our wishes via mobile phone and e-mail. It is vital that we question how secure our data would be, who holds it, how it is used, and whether it could be subject to be tampered with. If this could be ensured, this must be one of the criteria for any implementation of digital mediums for a last will & testament.
It’s also important to consider the role of a witness through 21st century communication, as they carry out an imperative role as independent invigilators to the authenticity, mental capacity, and willingness of a testator when a will is attested. This begs the question, how would we go about witnessing a text message or email? A similar question must then be asked about how we can authenticate authorship of any last wishes committed to a text or to an email.
So, should we simply stick to what we know and commit our last wishes to paper and sign them in ink? Not necessarily. Many of the issues with implementation of last wishes by text or email lie also in paper-based wills to a greater or lesser extent. There is also the added issue that we frequently only have a single signed copy, which could be lost or destroyed inadvertently.
“My conclusion is that we should consider moving with the times, but it must not be at the expense of putting our legacy at risk. Many questions need to be answered before we can make any significant changes, and I can’t see those being forthcoming for some time.
“In the meantime, don’t put yourselves in the position where you cannot adequately consider what your last wishes actually are. Speak to a professional, get some good advice, and don’t leave it too late.”, says Darren.
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