It’s no secret that death is widely regarded as a taboo subject. Why on earth would anyone want to focus on such horrible subjects – as Coldplay love to tell us, “life… is for living”!
It could be said that successive Governments have taken the same approach with the laws surrounding wills – last rewritten in 1837.
As a result, many will tell you that the current system is old fashioned and outdated by modern standards and, on the whole, I’d agree.
There’s also a wider problem that seems to flow from this: it’s believed that less than half of us in the U.K. have a will. Yes, there are rules that deal with your assets if you die without a will but they are a blunt instrument and rarely produce the best outcome.
The Law Commission (who is responsible for keeping our laws under review) has begun looking at these problems and asking how the current system could be improved.
The headline grabbing proposal is the Commission’s suggestion to make wills digital and even signed electronically.
Understandably, back in 1837 they had no idea about the digital future that lay ahead. Nowadays most wills are prepared on a computer but then printed and signed in the same manner as this time last century. But what if they were never printed? Instead, you simply review the will onscreen (whether on your computer, tablet, phone or even a watch), verify your identity and click a button to confirm it’s agreed?
Unfortunately there are countless practical issues with this approach, so much so that no other country in the world has been able to successfully implement the idea.
Issues aside, the concept is a great one. As odd as it might sound, one of the most significant hurdles to completing a will, even after paying for it to be professionally drafted, is having it signed. This is, in part, due to the difficulty in finding the required two witnesses (in the same room, at the same time). Yes, the current rules exist to add safeguards to an extremely important document but if a new approach can be found, via technology, that provides similar levels of comfort it seems obvious to consider it.
The other significant change the Commission is considering is how the law might be updated to allow the Court to correct obvious mistakes and injustices when it comes to the validity of a will.
The issue at present is that the smallest of errors in completing a will can leave it invalid, even where there is no doubt that it reflects your wishes. This strict approach can create some incredibly unjust results. Imagine you are unmarried and cohabiting with your partner. In your will you leave your home to your partner and everything else to your friend. If there is a mistake in the way the will is prepared or signed, and it is declared invalid, none of those mentioned will benefit. Instead your family will receive everything, regardless of this being clearly against your wishes.
The Courts in Australia, Canada and the US have a “dispensing power” to right just these sorts of wrongs and have used them successfully for a number of years. It seems obvious to many that we should have the same.
The main problem with this, sadly, is that it is all to open to abuse and creates a significant amount of uncertainty for those involved. If the rules are too wide, these sorts of changes could also lead to arguments within families, with a relative’s communications (texts, voicemails, emails…) trawled for anything to show that there had been a change of mind.
It all comes down to a balance in the end. I am all for there being a more accessible way in which a will can be completed and for a pragmatic approach to handling errors. That being said, when flexibility is added vulnerability always appears and the risks must be managed.
Death and money do the strangest things to people, and this can result in extremely expensive legal battles to resolve them.
It’s going to be very interesting to see what the Commission comes up with and the extent to which the Government listens.
Regardless of the result, and whilst science continues to battle with the secret of everlasting life, we should all plan for our eventual deaths. The more careful planning we do now, typically the fewer issues that arise after we’re gone.
Tim Snaith is a partner in the private client team at Winckworth Sherwood. He advises high-net worth families and entrepreneurs on their wills, estate planning and probate matters. www.wslaw.co.uk