By Paul Lewis, an accredited specialist in the law of contested wills, trusts estates and probate, Shulmans LLP
In light of the recent case whereby an Australian man’s unsent text was accepted by the judge as his official will, Paul Lewis considers the case under English law.
In England, the law currently prevents an unsent text amounting to a valid will and it would be a step too far to interpret or rectify it, even where the testator’s intention was clear. Even if the formal statutory rules are relaxed in line with the Law Commission’s recently published consultation document on the Law of Wills, an unsent text that is both unsigned and unwitnessed could not be construed as a valid will.
The Law Commission recently considered ways of reforming the law to allow for ‘electronic wills’ to be accepted as a person’s final will. However, those attending the consultation event struggled to formulate a secure way for the testator to sign a digitally created unprinted document in front of two witnesses present at the same time who must also ‘sign’ in compliance with the Wills Act of 1837.
As part of the same consultation, The Law Commission also examined whether a judge could dispense with the formalities of making a will, if the intentions of the testator were clear. A recent example occurred in Marley v Rawlings  UKSC 2 where a husband and wife signed each other’s wills by mistake, resulting in expensive litigation. It advanced as far as the Supreme Court before it was rectified by reference to a wider interpretation of the Administration of Justice Act 1982 S20, which was introduced some 35 years ago, with the intention of making it easier to validate a will and to make the law on wills more flexible.
In the case of Royal Society v Robinson  EWHC 3442 (Ch) a testator sought to leave his UK assets to a charity, however these intended assets were held in Channel Islands and Isle of Man bank accounts, which are technically not part of the UK. The court followed Marley v Rawlings and decided that in all the circumstances the testator clearly intended those assets to go to the charity and adopted a wider interpretation of ‘UK’ to include the offshore accounts.
In Reading v Reading  EWHC 946 (Ch) the court had to decide whether the words ‘issue of mine’ were intended to include the testators step children and applied a common-sense approach, stating it did.
In Vucicevic & Another v Aleksic & others  EWHC 2335 (Ch) the court ruled in favour of a handwritten document by calling on expert graphologist and translator evidence to extract the true intention and meaning of the foreign testator from ambiguous and meaningless terms.
However, these cases are mainly about intention and rectifying obvious mistakes, not about side-stepping the formalities of making a will in the first place. Although, since Marley v Rawlins if both issues of validity and rectification appear, and are closely related, they can be considered together.
The only real exceptions to compliance with formality under English law apply to military personnel on active military service, so long as words of testamentary intent are used, and indirectly where ‘gifts are made in contemplation of death’. Nevertheless, a recent Court of Appeal decision (King v Chiltern Dog Rescue & others  EWCA Civ 581) has virtually closed off the ‘deathbed gift’ avenue, except in the most extreme circumstances where death is imminent. The effect of such a gift is wide-open to abuse, as it can strip out the main asset in an estate, thereby defeating a formal will.
As a last resort, the Inheritance (Provisions for Family and Dependants) Act of 1975 allows judges to dispense with testamentary freedom and the intestacy rules. They have the power to reallocate estate assets to deserving children, spouses, those being maintained and more.
The Law Commission’s final recommendations will not do away with the formalities of making a will, but will probably recommend judges be given wider dispensing powers where the testator has made their intentions clear. However, if the overriding consideration, at the expense of formality becomes the testator’s wishes or intentions, then the courts will be overrun with challenges and expensive litigation.
Paul is a Senior Solicitor at Shulmans LLP in Leeds. He recently attended the Law Commissions Consultation Event on the Law of Wills and can be contacted on 0113 831 3858 or firstname.lastname@example.org.