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Probate disputes to rise over ‘digital messages’

An unsent text accepted as a man’s dying wish in Australia could signal more disputes in the UK, after a Law Commission will consultation concludes in November.


Steven Kempster, a partner in the contentious trust team of international law firm Withers told International Adviser that the Australia case was “surprising” because it hinged on a draft digital message, which suggests doubt whether it was finally approved.

The UK is consulting on relaxing its rules in England, which date back to 1837, to reflect technological change and give judges greater latitude.

The Will Consultation Paper runs until 10 November.

Queensland legislation already allows judges to accept different media and unsigned documents if they can be determined to reflect the individuals last wishes.

“Although English law requires strict formalities for the signature of a will, there is already some flexibility over the actual method of signature, or approval, where it is difficult for the person making a Will to provide a normal signature,” said Kempster.

“What is important is that there needs to be some ‘act’ of confirmation of the will, and also some witnesses to the act.

“The Law Commission has now proposed some changes to make digital wills a possibility, but this may only lead to a greater number of probate disputes as the risks of forgery of an electronic document will increase accordingly.”

Informal will

In her verdict Brisbane Supreme Court Justice Susan Brown said the wording of the text message, which ended with the words “my will”, showed that the man intended it to act as his will as well as containing detailed knowledge of his estate.

She said the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.

Other issues the UK Law Commission is consulting on:

  • changing the test for capacity to make a will to take into account the modern understanding of conditions like dementia
  • provide statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
  • new rules protecting those making a will from being unduly influenced by another person
  • lower the age for that a will can be made from 18 to 16


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