The government has denied that a proposed change to the laws surrounding wills could result in people sending wills by text message, as it concedes it is yet to consider the potential for increased fraud and litigation.
Responding to questions in parliament, junior justice minister Phillip Lee said that although a consultation by the Law Commission considered allowing for the provision of electronic wills (when technology allows) it would not mean that a text message could constitute a will.
Lee was asked what assessment the government had made to ensure people were protected by fraud should the Law Commission’s proposals be accepted.
Lee said: ‘The Law Commission has not made proposals to allow wills and other testamentary dispositions to be created by text message or similar informal routes. The Law Commission is, however, currently considering the law of wills, including how the law can provide for the making of electronic wills, whilst ensuring testators are protected against risks of fraud and exploitation.’
He added that the government would consider any recommendations but currently had no plans to change the legal requirements for creating a will and so no assessment of the potential for increased fraud and litigation had been made.
In July, the Commission published a consultation paper inviting views on several issues relating to will laws.
The relevant passage that sparked fears of wills by text message was in relation to introducing a dispensing power. A dispensing power, which is not currently available in England and Wales, enables a court to recognise a will as valid even if the usual formalities have not been complied with.
The commission said that if a dispensing power were introduced there are ’strong arguments’ that it should apply not only to traditional written documents but also to those in an electronic format, including a digital document or audio recording.
An example of where a dispensing power might be used could be if someone seriously ill in hospital might have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write, the commission said. It added that it would be for the courts to assess the facts in an individual case.
The Law Commission consultation closes on 10 November.