Law reform body proposes giving courts 'dispensing powers' in will disputes

Judges hearing contested will disputes could be given ‘dispensing powers’ under radical proposals that would also pave the way for electronic – and even video – wills.

Current formality provisions in the 1837 Wills Act require a will to be in writing and signed by two witnesses at the same time. The rules are strict and the courts are bound to reject a will as not valid if any of these requirements are not met, even in circumstances where there is convincing evidence of the true wishes of the testator.

In a consultation started today, the Law Commission said a dispensing power should be introduced in England and Wales to help ‘ensure that a testator’s intentions are given effect’ and reflect the idea that formality requirements are ‘a means to an end and not an end in themselves’.

‘The power should operate broadly,’ Professor Hopkins, the commissioner responsible for the project, told Solicitors Journal. ‘It could be email communications that the testator has had or maybe a draft will on the testator’s computer including communication with a lawyer, or even – if a person dies in an accident, for instance – a video they’ve recorded on a smartphone. What we’ve excluded specifically is a purely oral statement.’

A dispensing power would be a last resort, Professor Hopkins added. It would allow judges to recognise holograph wills as valid even though they are not witnessed. The law already recognises holograph wills as valid in many Germanic jurisdictions. Courts in Australia, New Zealand, some US states, Canada and South Africa also have this option by application of dispensing powers.

It would help in cases such as Re Groffman, where the judge was ‘perfectly satisfied that that document was intended by the deceased to be executed as his will and that its contents represent his testamentary intentions’, the commission said. However, the will was invalid because the two witnesses acted separately rather than in each other’s presence.

Similarly, in Re Colling a will was invalid because one of the witnesses, a nurse, had left the room before the testator had completed his signature.

At present, the nearest alternative in English law is the power for judges to rectify wills, which can sometimes achieve similar results. The Supreme Court dealt with the issue in Marley v Rawlings, a case involving mirror wills where the couple had signed the other’s will by mistake. What had happened, the court said, was a mere clerical error that the court could rectify under the Administration of Justice Act 1982.

In support of the change, the commission also argues that an assessment of evidence to establish whether a document or record represents the testator’s intention could offer ‘more protection than adherence to a particular form’. It also notes, however, that this could result in increased litigation, a risk that led the Law Reform Committee in 1980 to rule out the introduction of a dispensing power.

E-wills

The reform body remains cautious about intention-based dispensing powers, however, saying there has been little discussion of the issue in Britain while this has generated substantial academic debate in the US.

There was also a lack of evidence about the extent to which wills currently fail for non-compliance with formalities. A survey conducted by the Association of Contentious Trust and Probate Specialists practitioners in 2015 found that ‘inadvertent failure to observe formalities required for due execution’ was one of the main reasons for probate and wills disputes in the last three years, but more evidence was required before making a firm recommendation, the commission says.

Collating evidence about dispensing powers would be all the more essential as the commission also suggests they would have a part in the context of electronic wills, one of the more radical proposals in the consultation.

If the objective is to ensure that the testator’s clear wishes are to be given effect, a dispensing power would have to be applicable to all challenged wills irrespective of their form, including electronic wills, the consultation suggests. ‘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,’ it says.

On the other hand, the potential recognition of electronic documents could provide ‘a treasure trove for dissatisfied relatives’ who could 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’.

Nonetheless, the commission concludes, ‘on balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power’.

Digital security

The question of digital wills raises specific issues in its own right but the commission admits a certain enthusiasm about the idea.

Their view is that the law should enable electronic wills but ‘there are some difficulties in understanding how they should be signed in a way that is secure and protects people against fraud', Professor Hopkins said.

While the technology is here, there are obvious concerns over the authenticity of digital signatures, the heightened risk of fraud or hacking, and undue influence or coercion. Password or PIN-protected documents, even on several levels, only confirm that the codes are associated with a person, not that it is this person who is using them at any given time. At present, it would also be impossible not to involve a third party who would be responsible for authenticating a testator’s identity.

Digital contract technology, including encryption tools such as public key infrastructure, could provide some, but at present not all, the answers. ‘Electronic signatures are used in the context of transactions where there is an infrastructure already in place. To have electronic wills, we need that technology to be expanded to make electronic wills safe,’ said Professor Hopkins.

The proposal at this stage is to introduce an enabling power in a new Wills Act allowing the justice secretary to introduce electronic wills by way of a statutory instrument when suitably safe technology emerges that provides these guarantees.

Video wills also feature in the proposals. Having the testator record their will on a device as basic as a smartphone could address concerns over their identity and could even be a joint recording with two witnesses present. Here again, however, there are issues over coercion but also storage of the ‘will’.

The consultation runs until 10 November. Final recommendations would include a draft bill for a new Wills Act which the commission hopes would be sufficiently uncontroversial that it could be examined under the special procedure which minimises the time the bill needs on the floor of the house. This wouldn’t be expected for at least another year.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg