Wills by Text

WARNING: Morbid description

Imagine, god forbid, that you are involved in a serious car accident, and help is too far away. At that point, you know you would not be able to make it back home alive, but you want to ensure that your assets are passed on to your loved ones in a specific manner, for instance, your grandmother’s wedding ring is to pass to your eldest daughter, and your holiday home to your brother. But you have not yet made a will to that effect.

Under Singapore law, strict requirements must be complied with in order for a will to be valid. For one, every will must be signed at the end by the testator (or by some other person in his presence and by his direction) in the presence of two witnesses present at that time.

Taking a step back, what if, hypothetically, you could, draft a valid will by way of text message, or, dare I say, by voicemail?

This is precisely what has been proposed by the Law Commission in the UK earlier this week. Armed with a warning that the current legislation on wills is out of step with the digital world and puts people off writing a will, the Law Commission has proposed that text messages, emails and voicemails be considered legally binding records when dividing deceased’s estates. If accepted, this would no doubt rock the world in an overhaul of the pre-existing Victorian laws on wills.

While this proposal is a breath of fresh air in the midst of old laws generally (and gives effect to people’s wishes particularly in situations of emergency), it may create more problems than it solves. At the outset, are these digital memos verifiable? To elaborate, can one conclusively say that the testator was the person creating and/or sending the voicemail/text message? What if there are no witnesses to the act?

The Law Commission has, in this regard, proposed that judges be empowered to decide on the balance of probabilities whether the recording or note is an accurate summary of that person’s wishes. But if the issue is commonplace, would that then not give grieving families more grief, since any ambiguity (where so challenged) will be conclusively decided by an outsider?

At the end of the day, while it may well be time to overhaul the Victorian laws on wills (including the Singapore Wills Act), it cannot be adequately stressed that safeguards must be put in place to ensure that the distribution of an estate goes smoothly without having to put a grieving family through more pain.

Update: The English government has rejected the proposal that the laws surrounding wills be changed to allow people to send wills by text message, citing reasons of potential fraud and exploitation. In light of the numerous practical difficulties associated with the proposal, we would tend to agree with their decision, at least until adequate safeguards against the risks of fraud and/or exploitation are put in place. Stay tuned!

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