The Law Commission regularly reviews the way in which the legal system works and is currently undertaking a review to decide if the law relating to Wills from 1837 ought to be modernised to take into account advances in technology and how we communicate, including whether text messages, emails and audio/video recordings could override an existing written Will.
Emojis were included in a 2016 High Court judgment by Justice Peter Jackson in a family law dispute involving Lancashire County Council, so it would not be an unnatural step to allow technological and communication advances to influence how Wills can be made.
Provision for electronic Wills is already in force in Australia, where DVDs and videos were confirmed to be valid Wills in cases in 2013 and 2015. Last month, a Brisbane court decided that an unsent text message with a smiley face emoji amounted to a valid Will.
Progress is to be encouraged but we should also exercise caution because, as the Australian court cases have shown, there is potential for a great deal of disagreement (and litigation) relating to electronic Wills for a number of reasons:
- Was the email/text/recording intended to be a Will? Is there any independent evidence of what was intended, such as a witness?
- What do the words (and emojis) in the electronic Will mean in context?
- When was the electronic Will made and can we be certain that it was made/created by that person?
In order to avoid changes to the law resulting in more litigation, the Law Commission will need to ensure that appropriately robust safeguards are put in place to reduce the risk of fraud and the risk of disputes in relation to the interpretation of words or images in electronic Wills.
The Law Commission’s consultation on the potential reform of the Wills Act 1837 closes on 10th November 2017.
For further information, please do not hesitate to contact Stephanie Kerr.