The headlines over the summer following the launch of the Law Commission consultation on Wills caused a lot of people to prick up their ears.

One of the key matters up for debate is the formality required to make a Will.  The law on this subject has certainly stood the test of time, being set out in the Wills Act 1837.  After 180 years the legislation remains remarkably unaltered.  Subject to a few rare exceptions, a Will must be:

(i)       in writing,

(ii)     signed by the testator, and

(iii)   witnessed by two independent people.

A Will can be handwritten in any language, in pen or pencil, on any writing material or even on an object.  In a case back in 1926, a Will written on an empty eggshell was found to be valid.  A recent case in Canada allowed a Will written on a tractor fender to be proved. The “writing” can be any mode of representing or reproducing words in any form. So why not by text? Or by emoji?!

Despite the headlines, Wills by text are not actually amongst the Law Commission’s proposals in their 284-page consultation document.  However, one proposal of the Commission is that in some extreme and very limited circumstances, the courts should be given power to dispense with the usual strict formalities of making Wills so that records demonstrating that person’s wishes, whether by text, email, video or audio recording, might be allowed as evidence of how they wish their estate to pass.  This would not however be the “norm”.

The Commission is though envisaging the introduction in due course of “electronic Wills”; that is Wills which have been signed and witnessed in electronic form. This might well become the norm, but still recognising the practical challenges which would first need to be overcome.  One proposal is that the law be changed to allow Wills to be made electronically, as and when there is sufficient protection and security in place; the details would be left to future legislation.

The public consultation ends on 10th November 2017.  If you wish to give your views please visit https://www.lawcom.gov.uk/project/wills/.  If the proposed new law on Wills is to enjoy as long a life as its predecessor this will be your only chance.