Form, Content and Interpretation of a Will
| Author | Nasreen Pearce |
| Pages | 9-24 |
Chapter 2
Form, Content and Interpretation of a Will
2.1 INTRODUCTION
Every will must be in writing, but there is no legal requirement for it to use any formal language so long as it sets out clearly the wishes and intentions of the testator/testatrix. Disputes, however, may arise if the intention of the testator/ testatrix is not clear or if the beneficiary under the will or property to which reference is made cannot be identified or traced. In such instances, issues of construction and interpretation inevitably arise. This chapter considers the issues which could result in a will being challenged and how the court may resolve the differences which may arise between the competing parties.
2.2 NATURE AND FORM OF A WILL
The form and manner in which a will is to be made are set out in the Wills Act 1837, as amended by the Administration of Justice Act 1982.
Every will, other than a privileged will, i.e. a will that extends to soldiers in actual military service and to mariners or seamen at sea, must be in writing. The Interpretation Act 1978 provides that in any Act, unless the contrary intention appears, ‘writing’ is to be construed to include ‘typing, printing, lithography, photography and other modes of representing and reproducing words in a visible form and expressions referring to writing are to be construed accordingly’.
2.3 ELECTRONIC WILLS
In view of the emergence of, and increasing reliance on, digital technology, the issue of whether a valid will could be made orally or by way of audio or video recording and audio/electronic recording was given consideration by the Law Commission in Making a Will, Consultation Paper 231 (Law Commission, 2017). The Law Commission took the view that it would be undesirable to allow oral
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wills because, as previously noted, its 1980 report, this form of will making would create uncertainty and give rise to litigation, and also because of the difficulties of proving and interpreting oral statements. Its view was that reform should not seek to enable the validity of wills in oral form whether recorded or not (see Chapter 5 of the Consultation Paper).
The Law Commission also went on to consider whether video including audio recording, i.e. an electronic will, should be permitted because it has the advantage of both the visual and audio recording (see Chapter 6 of the Consultation Paper). In dealing with this issue, although its proposals concentrated in the main on the rules on the execution of a will, it acknowledged the current practice of the use of digital technology by practitioners in communicating with the client and taking instructions for the preparation and drafting of wills, without the practitioner and the client meeting personally, and which then leads to the production of a printed paper document for execution. It also took into account the use of software to prepare and create a hard copy of the will. However, on having also considered attempts made to introduce legislation in the United States and other jurisdictions to create valid electronic wills, the Law Commission nevertheless adopted its advice to the government, Electronic Commerce: Formal Requirements in Commercial Transactions, Advice from the Law Commission (Law Commission, December 2001), and its observation that the conclusion it had reached in relation to electronic commercial documents should not apply to wills. The view taken was that in commercial transactions, electronic versions may be acceptable as coming within the definition in the Interpretation Act 1978 because the decisions are made between two living individuals for commercial reasons, whereas in relation to probate disputes the individual whose estate is the subject of the dispute is not a party to the proceedings. It also relied on the decision in Lim v Thompson [2009] EWHC 3341 (Ch) as being an obstacle generally (see paras 6.9–6.32 of the Consultation Paper). However, at paragraph 6.34 the Law Commission stated:
Our starting point has been to recognise that, while the status of electronic wills is currently uncertain, it is highly likely that their use will become commonplace in the future. We welcome development in this area and believe that our review of the law of wills is an opportunity to ensure that any future transition to electronic will-making is as smooth as possible. With that in mind, we have tried to determine the parameters of a satisfactory system for electronically executing a will. We have focussed on electronic signatures and identified three core issues.
And in Consultation Question 30 (paragraph 6.43 of the Consultation Paper), the Law Commission provisionally proposed:
(1) an enabling power should be introduced that will allow electronically executed wills or fully electronic wills to be recognised as valid, to be enacted through secondary legislation;
(2) the enabling power should be neutral as to the form that electronically executed or fully electronic wills should take, allowing this to be decided at the time of the enactment of the secondary legislation; and
(3) such an enabling power should be exercised when a form of electronically executed will or fully electronic will, as the case may be, is available which provides sufficient protection for testators against the risks of fraud and undue influence.
Work on the preparation of the final report has been suspended, and it is not clear when it will be resumed and when the final report will be published, let alone whether the government will accept any recommendation the Law Commission makes and, if so, when any primary or secondary legislation will be passed to enable wills to be made, stored and accepted for probate electronically.
In view of the modification made to the attestation and execution of a will during the Covid-19 pandemic, it is suggested that the arguments for and logic in, permitting an electronic form of attestation apply equally to the form of the will itself. Applying logic and common sense to the situation, it would be possible to rely on the common law to extend the modified attestation provision to include a will that is made and stored electronically and/or to the interpretation that a will made in a digital/electronic form and stored electronically falls within the definition in the Interpretation Act 1978, and that it is not necessary to await the Law Commission’s final report, which has been suspended to deal with other law reforms, or legislation. Electronic working through the system called ‘CE File’ has been compulsory in the Chancery Division since 25 April 2017. This system enables parties to register for electronic working and to then issue proceedings and file documents, etc. online. Although currently, because probate claims require original documents to be filed, such claims cannot be issued using electronic working unless the court permits, it is likely in due course that the requirement set out in the Wills Act 1837 for wills to be in written form and, therefore, paper form, will be modified to enable wills to be made electronically. However, a word of caution – until the Wills Act is amended/modified or case law extends the definition of ‘writing’ to include an e-document, it would be prudent to make a will both in paper form and electronic form in identical terms as a safeguard, and to ensure that both are safely stored.
The requirements in relation to the execution of a will and the Law Commission’s views expressed in Chapter 6 of the Consultation Paper are dealt with in Chapter 3 of this book.
There is no requirement that the will should be made on any particular material or that it should be made using any specific words as long as the testator’s/ testatrix’s intention and his/her wishes as to the disposition of his/her assets or part of the assets and the appointment of executors and trustees appear clear from
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the language used. There is also no requirement that the will should be dated (contrast this with an international will; see para 2.7). Where a date is not included or a wrong date is inserted it does not invalidate the will, but evidence of the date on which the will was executed will need to be called for before the will is admitted to proof.
2.4 UNCERTAINTY RELATING TO INTENTION, SUBJECT MATTER OR DONEE
A will is a document which sets out the wishes of the person making it as to how he/she intends that his/her assets should be distributed on his/her death. Thus unless a contrary intention is expressed, the will takes effect on his/her death (section 24 of the Wills Act 1837) and it may be revoked or varied at any time during the person’s lifetime. Until death occurs, the ownership and control of the assets of the testator/testatrix remain with him/her, with the right to dispose of these assets or any part of them during his/her lifetime. Where no valuable consideration was given for a lifetime disposition, in the absence of any proof, the disposition will be construed as a gift...
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