The Law Commission is currently reviewing the responses to its consultation on reforming the law of Wills. The consultation itself closed on 10 November 2017 see more here. One topic being considered is a range of proposals as to the type of evidence that might be considered when trying to determine a person’s intentions after their death.
In the UK the law is currently set out in the Wills Act 1837. This 180 year old piece of legislation has stood the test of time and sets out all the requirements in English Law for a valid Will.
The Act provides that a valid Will must be
- In writing
- Signed by the person making the Will
- Witnessed by at least two witnesses present at the same time.
The Wills Act 1837 requirements are not always easy to understand for the lay person and many at “kitchen table” Will has been found invalid, often causing significant dispute within families.
Perhaps, though an Australian Court decision is a move too far in the other direction?
Brisbane Supreme Court was asked to consider the intentions of 55 years old Mark Nicol who composed a text message to his brother and/nephew shortly before committing suicide.
The text message which was never actually sent read as follows: –
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin xxx 10/10/2016 My Will”.
Justice Susan Brown sitting in the Brisbane Supreme Court found that the “informal nature” of the message did not prevent her from finding that it recorded his intentions. This was particularly the case given that it had been created at or about the time the deceased was contemplating death.
This decision comes hot on the heels of a case in Australia where a DVD was held to be a valid Will.
It remains to be seen whether UK Law will be relaxed to this extreme in the future – such a development could lead to more uncertainty rather than less.