Recent headlines have covered the heartbreaking story of Max George (36), from Manchester, who rose to fame as part of the boyband The Wanted and his decision to write down his wishes for the distribution of his estate on his iPhone in the event of his death during an operation.
Some articles even said that George wrote his Will on his iPhone.
This would not have been a validly executed Will and had the worst happened, George's wishes would not be legally binding due to the format the "Will" was in.
The tabloids risk spreading misinformation and misleading the general public into believing that digital Wills exist within our legal system. To avoid doubt, making a digital Will in any format, such as an iPhone is impossible.
Our Wills Lawyers explain why a Will written on your phone would not be valid.
The law surrounding the validity of Wills has not changed much in the last 200 years (except for a temporary change to the rules during the COVID-19 pandemic).
The requirements for a valid Will are referred to within the Wills Act 1837.
Section 9 provides that no Will shall be valid unless:
- It is in writing and signed by the testator (or by some other person in their presence and by their direction – in exceptional circumstances);
- It appears that the testator intended to give effect to the Will by their signature; and
- The testator's signature was made in the presence of two independent witnesses who must also sign the Will.
Digital or electronic Wills are not legally valid under the current legislation, even using services such as DocuSign.
Adaptations to the signing and witnessing of Wills were made during the Covid-19 pandemic to allow for Wills to be witnessed while remaining socially distanced through either:
- Witnessing signatures through a window or glass door
- Video witnessing the signing of a Will
Video witnessing a signature of a Will is no longer permitted in England and Wales since 1 February 2024, as the Government did not renew the temporary legislation enacted to allow for this.
What risks are involved with a digital Will?
Referring to the requirements for a valid Will above, the following risks are apparent:
- A digital Will (or an iPhone Will) does not comply with the statutory requirements for the "Will" to be valid;
- If the "Will" is not valid, it cannot be proved at the Probate Registry and will not be accepted by third parties;
- The "beneficiaries" named in the "Will" may not benefit in the terms intended and an earlier Will (if one exists) or the rules of intestacy will apply (if a Will has never been made). Intestacy only benefits family members and will not provide for unmarried partners, friends, charities etc;
- These types of "Wills" are usually made last minute, and intentions may not be clear if wishes are written down on an iPhone in a rush and, therefore can lack the structure and clarity of a properly drafted Will with coherent language and clauses;
- Ultimately, this could lead to conflict between the beneficiaries mentioned in the "Will" and people who would benefit under an earlier Will or intestacy. This, in turn, often results in litigation proceedings being brought if an agreement cannot be reached, which is costly and time-consuming, not to mention emotionally draining following a bereavement.
What to do instead and how Myerson can help
What to do instead and how Myerson can help
A Will is arguably one of the most important documents you will prepare during your lifetime and covers all your hard-earned assets during your lifetime, and each individual’s circumstances are unique.
Working with a solicitor to draft a Will that accurately reflects your wishes will assist you in achieving your desired results in the most efficient way while also ensuring that the Will is effective in the eyes of the law, reducing the possibility of fallouts after your death.
Our dedicated Wills, Trust and Probate Team here at Myerson can provide the following:-
- Tailored advice to your unique needs and circumstances. We will discuss your current assets and liabilities, your family tree and your wishes for the distribution of your wealth to prepare your Will;
- Tax efficiency – if there is a risk of your estate paying inheritance tax, our team can advise on any applicable exemptions and reliefs that are available in your circumstances to maximise the use of the same and advise you on succession planning for you and your business;
- Greater clarity – a properly drafted and executed Will provides for greater clarity and less ambiguity when it comes to the interpretation of this document;
- Reduce potential litigation and challenges by beneficiaries.
Potential change in the law
The Law Commission originally reviewed the law surrounding Wills in 2017 in which the following were reviewed:
- Dispensing with the formalities for a Will where it is clear what the deceased wanted;
- Change to the existing test for mental capacity to make a Will to take into account the modern understanding of conditions such as dementia;
- Provision of guidance to health care professionals when conducting assessments for mental capacity to make a Will;
- Introducing new rules to protect those making Wills from undue influence by others;
- Lowering the age for making a Will from 18 to 16.
While this project was paused between 2019 and 2022 (during this time, the temporary legislation in light of the COVID-19 pandemic was implemented), a further Consultation Paper was published in October 2023. The possible reforms to the law were proposed for two key topics:
- The rule that marriage or civil partnership revokes a Will – for more information on this topic please see our blog
- The possibility of enabling electronic Wills
The Law Commission aims to publish the final report regarding these potential reforms and a draft Bill to enact any recommendations around April 2025.
For now, however, the law remains enacted in 1837, and the above requirements still stand.
What next?
A Will is a vital document that allows you to choose how to distribute your assets once you have died.
Our national law allows each person what's referred to as 'testamentary freedom', meaning you have the complete freedom to choose who inherits your estate.
Despite this, it is thought that over 40% of adults do not have a Will.
Sadly, it is only in situations such as the one highlighted by Max George's health or the pandemic that prompt many of the population to consider their wishes and solidify these within a Will, which means that proper thought may not have been given to the matter in terms of consequences and adequate legal and tax advice may not have been sought.
Therefore, you must take your estate planning and preparation of a properly executed Will seriously, as the costs to rectify or resolve any issues could be in the tens of thousands compared to the price of making a Will.
We recommend that you seek legal and professional advice to ensure that your wishes are accurately reflected within your Will and do not rely on information given by the tabloids or equivalent.
A Will is not a one-size-fits-all.
Contact Our Wills, Trusts and Probate Solicitors
If you wish to discuss your own estate planning or review the validity of your existing Will, please give our experienced Wills team a call on:
01619414000
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