Should The British Wills Act 1837 Be Reviewed?

As technological advances have evolved rapidly in a modern world, there have been multiple cases around the globe whereby testator’s intentions have been allowed, regardless of how the document was produced and bypassing legal formalities.

In a recent article in Today’s Wills & Probate, Ryan Taylor provides comment on this important issue:

“The Wills Act 1837 sets out the formalities for a valid Will in England and Wales. The complexity of dealing with estates, and the interpersonal relationships at play, mean that the formal requirements of a Will should remain in most cases.  These requirements provide protective mechanisms to allow us to be certain of the testator’s wishes and the veracity of the document after they have died. The downside is that the strict requirements of the Wills Act can also see some Wills made unusable, and does not help friends and relatives where the deceased has expressed his or her wishes but then died intestate.

“One of the requirements for a valid Will is that the testator must have intended the document to be a record of their final wishes. It is this intention that some other jurisdictions focus on when determining whether an informal Will should be accepted as a valid testamentary document. Recent cases in Australia of iPhone notes, unprinted Word documents and videos have highlighted how Courts there will use their discretion to consider whether the intentions of the testator should be upheld, even when not formally recorded in a Will.  This highlights how the common law can adapt to societal changes, but it does not come without risks.  The Australian cases to date deal with clear and specific circumstances (particularly where testators were aware of their likely impending demise), but there is a risk that allowing any expression of wish by a testator to replace the strict requirements of the Wills Act could lead to an explosion of litigation in this area.  It is already a highly emotionally charged area of work, and whilst updating the law is always welcome, it should only be undertaken with a high degree of care.

“However, when too many people either do not have a Will at all, or may not have had it properly prepared by experts with suitable experience, it might be appropriate that updates to the law dealing with Wills and estates are made in order to enable Courts to carry out the known last wishes of a testator.”

The full article was published on 12 July 2019 and can be found here