Video wills may not be to everyone's taste, but should they be valid? Duncan Bailey argues that it is time to reform the Wills Act 1837


Imagine the scene. The funeral is over and the family gather together sombrely for the reading of the will. Suddenly the voice of the solicitor is replaced by that of the dearly departed himself, appearing on video to explain at first hand how he wants his estate divided.



Video wills - or even tape recordings - may not be to everyone's taste, and under our current law they would not be valid. However, many people would appreciate greater flexibility in drawing up their last will and testament and the opportunity to take a more personal approach.



The law often fails to keep pace with technology and the area of wills is no exception. The problem is that current legislation dates back almost two centuries to the Wills Act 1837, well before the advent of modern communication technologies.



Section 9 of the Act states that a will is not valid unless - among other things - it is in writing and signed by the testator. Australian law has similar provisions in section 7 of the Wills, Probate and Administration Act 1898. However, that country has recently introduced a 'general dispensing power' for courts to admit documents that do not comply with the requirements of section 7 if satisfied that they are intended by the deceased to constitute the will.



A fairly recent Australian case confirmed, and possibly furthered, this principle. David Michael Edwards initially made a will in 1993, leaving all his estate to his executors to distribute among his friends as they wished. By 1996, he had thought better of it and decided to make some specific gifts rather than let others divide it up.



His solicitor suggested these gifts should be the subject of a separate list that could be attached to his will. Mr Edwards made the list in tape format, and included a clause in his will directing executors to dispose of his property in accordance with it.



A dispute arose after Mr Edwards' death about the admissibility of the tape. The court was satisfied that the deceased made the tape before the execution of the will and it had been clearly labelled. While it was rather a 'rambling presentation', the court deemed the contents sufficiently certain to dispose of the deceased's assets and it was admitted to probate.



It raises the question of whether the UK Law Commission should consider incorporating a similar dispensing power to that of the Australian courts - and of how the area of non-written wills could develop given the ever-increasing use of modern technology.



There are those who argue that if videos and tape recordings were admissible, people would be more inclined to make their own will at home without regard to necessary formalities and without legal advice. There is also the question of authenticity and establishing when a video or tape recording was made.



One solution might be to establish a central register, where solicitors could make a record of such wills, having ensured that they complied with necessary requirements. A central register could also have a wider benefit in keeping track of written wills too.



In private client work, families who bring in wills are often unsure as to whether other versions are in existence - or even if their relative has left a will at all. Even where a will is in the care of the solicitor, there is no guarantee that the departed has not made a later will with another law firm.



A registration scheme may help overcome these problems and identify the latest will of the deceased. After almost 170 years maybe it is time to look at our system afresh to ensure it is keeping up with advances in technology, and that the deceased truly does have the last word.



Duncan Bailey is an associate in the private client department at Brabners Chaffe Street's Liverpool office