Text messages, emails and other electronic communications could be recognised as a valid will in exceptional circumstances as part of proposals to modernise "Victorian" inheritance rules.
The Law Commission, the independent body that advises ministers on the law, has proposed a new power that would allow courts to recognise a will that would not be valid under existing rules, but where the will-maker has made clear their intentions.
Using the example of a victim in a fatal road traffic accident, if a person had not made a formal will prior to the car crash but had expressed their intentions in an electronic message, their family may apply to a court to have the communications recognised as a formal will.
These proposals are fraught with problems and I think most legal experts would agree. Although the Law Commission has described the current system as Victorian, there are certain things that can’t be done digitally.
A message sent via smartphone or a similar electronic format would then be viewed in the same way as a formal will, if approved by a judge.
Noting that 40 per cent of people die without making a will, the independent Law Commission said the "Victorian" rules need updating because they are "out of step with the modern world" and are "failing to protect the vulnerable".
The Law Commission has launched a consultation on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.
James Beresford, head of the wills team at Slater and Gordon, said: “These proposals are fraught with problems and I think most legal experts would agree. Although the Law Commission has described the current system as Victorian, there are certain things that can’t be done digitally.
“In making a will you have to be sure that the person has capacity. With a text message how can you even be sure that they wrote and sent it? If this goes ahead I think it will be opening a can of worms and lead to a rise in homemade wills as well as a rise in people trying to dispute them.”
The consultation closes on November 10.