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FROM EGGSHELLS TO IPHONES.....

We have come a long way since the case of Hodson v Barnes in 1926 concerning the validity of a will.

Most people know that there are formalities and that a will has to be in writing apart from certain limited exceptions.  In the famous case (to lawyers anyway), of Hodson v Barnes, the Testator, a pilot on the Manchester Ship Canal chose to record his wishes on an eggshell, for some extraordinary reason.  Whilst the will was not held to be valid on other grounds it has generally been accepted since, that if in writing, a will does not have to be written on paper to be effective.

The law in England and Wales is governed by the Wills Act 1837 dating back to the start of Queen Victoria’s reign.  Section 9 provides broadly that a valid will must be in writing and signed by the testator in the presence of two or more witnesses, the testator and witnesses all being present together and signing at the same time.

Traditionally a solicitor has taken instructions from the client face to face and then prepared the will. This is then signed by the testator at the solicitor’s office in the presence of two witnesses who also sign.  Occasionally clients request solicitors to prepare wills over the telephone without a face to face meeting.  The will is then sent to the client who accepts responsibility for signing and complying with the formalities.  For some time there has been an advance on this in that some firms provide an online will writing service.  This has some limitations; for example the solicitor is unable to spot any lack of capacity or undue influence and advise on other issues which could be discussed in a face to face meeting.

A will is a very important document allowing people to direct what happens to all their assets after death.  They can also appoint guardians for children as well as express their wishes regarding their pets and record their funeral wishes.  Given that possibly 40% of the public have not made a will, and homemade wills often fail to comply with rules about formalities the Law Commission undertook a public consultation in 2013.    Research is being carried out to see where changes in the law can be made to reflect modern society.  Information technology has changed all our lives and we have an aging population.

The consultation has been opened to the public from 13 July this year.  As well as other related issues The Law Commission is considering whether the formality rules can be dispensed with where it is clear what the testator wanted.  Could we saw the law developing so wills could be completely digital eg made by text or other electronic record?   A balance has to be found between adapting the law to the 21st century world and protecting potentially vulnerable people wanting to make wills.

For many people, the traditional route will still be their preferred option.

For further information on making a will please telephone our Wills & Probate Department on 01625 538816.