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Guarding against Phoney Wills: Applying Formalities to Unsent Texts

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About The Author

Jamil Mustafa (Private Law Editor)

Jamil is currently undertaking pupillage at a commercial chancery chambers, after obtaining an Outstanding on the BPTC at BPP University and a Distinction on the BCL at Oxford. His main legal interests are contract, tort and equity. Before the law, Jamil graduated with an MPhil in American History with Distinction from Clare College, Cambridge, and with First Class Honours in Government and History from the LSE. Outside academia, Jamil enjoys cricket, rugby and rowing and is a staunch supporter of Manchester United FC.

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Say not you know another entirely till you have divided an inheritance with him.

Johann Kaspar Lavater

When a will is made, it must contain the genuine testamentary intention of the deceased (referred to as the testator or testatrix) as to how their estate is to be disposed of in the event of their death. The reasons for this are obvious; with the testator themselves now clearly unable to act, and with rectification operating within strict parameters under English law, there is little that can be done afterwards to change a will.

At the same time, the creation of a will must meet certain formalities. Requiring compliance with these formalities to validly execute a will not only safeguards the making of a will from the dangers of fraud and undue influence, but also prevents testamentary dispositions being made without adequate forethought. Formality requirements thus facilitate the overriding objective of a will; ensuring a testator’s true and considered intention is carried out. 

Nonetheless, there is an omnipresent tension between formalities and testamentary intention in English law; overzealous enforcement of formality requirements may negate the very testamentary intention they are designed to protect. In fact, the difficulty of resolving this tension was highlighted by the Supreme Court of Queensland’s recent decision in the widely-reported and tragic case of Re Nichol [2017]. This judgment further fanned the flames of the reform debate in England and Wales that had been fuelled by the Law Commission’s tackling of the problem in its ongoing Consultation Paper entitled ‘Making a Will’.

Indeed, using the judgment in Re Nichol [2017] as its basis, this article examines the merits of one of the Law Commission’s key, albeit tentative, recommendations that – following the example of other jurisdictions – English law should introduce a power to dispense with formality requirements in wills.

Formalities in English Law

Section 9 of the Wills Act 1837 (WA 1837) governs the formality requirements to validly execute a will. The intention behind this piece of legislation was that all wills should be executed in one form that is easily intelligible. As a result, Section 9 of the WA 1837 states that:

No will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either—

    (i) attests and signs the will; or

   (ii) acknowledges his signature, in the presence of the testator (but not necessarily          in the presence of any other witness),

but no form of attestation shall be necessary.

In general, these formality requirements ensure the purity of testamentary intention with success. By making it clear how a will must be made, the fact that someone went to the trouble of hiring a lawyer and complying with the relevant formalities in the statute is fairly conclusive as to their intention that said document should represent their last will.

A Question of Substance, Not Form 

However, a problem arises when those formality rules are enforced as ends in themselves rather than as means to the end of upholding testamentary intention. Such enforcement can lead to a document being declared invalid as a will, despite there being clear evidence of genuine testamentary intention as to disposition of a deceased’s estate in that document. In 1980, the Law Reform Committee explored this issue in a report entitled ‘The Making and Revocation of Wills’, and considered two proposals for reform.

  • Conferring a Dispensing Power on the Court

This would allow a court to admit a will to probate (uphold its validity) if it were satisfied that the will represented the true intention of the testator, despite the fact it did not comply with the requisite formalities. The court could therefore dispense with the need for formalities. 

  • Relaxation of the Formality Rules in Section 9 of the WA 1837

The Law Reform Committee stated this could be achieved via two strands of reform:

  1. A will ought to be admitted to probate if it was apparent ‘on its face’ that the testator intended his signature to validate it, irrespective of where on the will the signature was placed;
  2. An acknowledgement of the testator’s signature by an attesting witness should have the same effect as his actual signature.

The Law Reform Committee concluded that the second proposal was to be preferred. As a result of its recommendation to its effect, both strands of reform were implemented by way of an amendment to Section 9 of the WA 1837 via Section 17 of the Administration of Justice Act 1982.

Impact of the 1982 Reforms – Subsequent Case Law

Regrettably, these reforms effected no real change: strict upholding of formality rules by the courts was leading to wills in which the testators’ intention was clear nonetheless being declared invalid. This much was made clear by the first case decided under the reformulated version of Section 9 of the WA 1837: Re White (deceased) [1990] 3 All ER 1.

This case concerned the validity of an amendment to a will made pursuant to Section 21 of the WA 1837. In order for the amendment to be valid, compliance with the new provisions of Section 9 of the WA 1837 was needed. The testator had validly executed a will in 1981, meeting all the formality requirements. In 1984, he dictated six alterations to that will to another person, who wrote them onto the original will. The testator was given then given the original will; having checked it, he wrote in a blank space at the foot of the will’s last page ‘alterations to will dated 14-12-84’. Two witnesses then signed the will but the testator – who had signed the will in 1981 – did not sign it again.

The court held that the formalities under Section 9 of the WA 1837 had not been complied with. Although the testator's signature from 1981 was indeed on the amended will, and two witnesses had signed to attest to the amendments in 1984, the lack of a signature in 1984 meant that the testator had to be considered as only intending to give effect to the original will without the amendments. Consequently, the amendments were invalid.

Though there are some examples of a more liberal approach being taken by the courts – in Weatherill v Pearce [1995] 1 WLR 592, it was held that, where it was held the presumption of due execution allowed a will to be valid, even though where there was considerable doubt as to whether the two witnesses had been present together when the testatrix acknowledged her signature – it is questionable whether this can attributed to the 1982 reforms. Furthermore, it is clear that the precedent from Weatherill v Pearce [1995] 1 WLR 592 can only extend so far: it was to no avail where – as occurred in Ahluwalia v Singh [2011] – it was known that the two witnesses were not present together. This resulted in a will being set aside, despite the judge admitting he was:

[C]onscious, and have kept fully in mind that the effect of this Judgment is to frustrate [the testator’s] intentions’.

It was unfortunate that the Law Reform Committee had rejected the more radical proposition of a dispensing power. Its argument that allowing such a power would lead to excessive litigation, expense and delay in probate proceedings ignored that such reform was the only way to effectively prevent flouting of testamentary intention. This is demonstrated by cases such as Re Groffman [1969] 2 All ER 108 – a case decided before the report but which would have been unaffected by its recommendations – where a dispensing power would have saved a will which undoubtedly represented the authentic intention of the testator, but was held to invalid because only the second witness was in the presence of the testator when he acknowledged his signature.

Notably Professor John Langbein, a prominent scholar of trusts and estates, had initially supported an approach that (similar to that which was proposed by the Law Reform Committee) involved relaxing formality rules as a means to give effect to testamentary intention. But, after he witnessed the application of such a rule in Queensland – which saw the statutory phrasing of ‘substantial compliance’ with formalities interpreted as being ‘near perfect’ – he subsequently advocated a dispensing power. Indeed, he noted that a version of such a power in Section 12 of the Wills Act 1936 of South Australia was a ‘triumph of law reform’ that was more conducive to advancing the testator’s intention. 

In sum, the reform that resulted from the 22nd Report was of little consequence; the Law Reform Committee made the wrong choice. Indeed, this can be seen by the success that has been had with the use of a dispensing power elsewhere. This has ironically been most noticeable in Queensland, where such a power was introduced under the Succession Act 1981 (SA 1981), and used to great effect in the recent case of Re Nichol [2017].

An Alternative Approach Down Under

The decision of the Supreme Court of Queensland in Re Nichol [2017] is a remarkable one. The facts of the case are sad. Mark Nichol, who lived in a suburb of Brisbane, killed himself in a shed at his home in October 2016. His estranged wife, Julie Nichol, found his mobile phone alongside his body and, the following day, she asked a friend to access the phone to look through the contact list to see who should be notified of Mark’s death. The friend told Julie she had found an unsent text message, and one of Mark’s nephews took a screenshot of it. It read:

Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636

MRN190162Q

10/10/2016

My will

This unsent text message sparked two competing applications. One was for a grant of letters of administration on intestacy by the deceased’s widow, Julie, supported by their son, Anthony. The other was an application, brought by the deceased’s brother, David Nichol – to whom the unsent text was addressed – and his nephew, Jack Nichol, which asked for the draft message to be treated as a will pursuant to Section 18 of the SA 1981.

Section 18 of the SA 1981 allows a court to dispense with the execution requirements for making, altering or revoking a will in Section 10 of the SA 1981, where it:

[I]s satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

In practice, case law shows that the courts have diluted the standard of proof to the balance of probabilities.

On the facts, the consequence of the operation of Section 18 of the SA 1981 would have been to deny the deceased’s widow and son a legacy under his estate. The case therefore revolved around whether the court should use Section 10 of the SA 1981 to intervene.

After considering the facts, Brown J was satisfied that the power under Section 10 of the SA 1981 should be used. He cited a number of reasons why he was satisfied that the deceased intended the message to form his will:

  • No party disputed that the text message could constitute a document under the SA 1981;
  • The deceased had not previously made a formal will;
  • The document purported to state the testamentary intentions of the deceased. The text message expressly stated it was his will, identified the assets in his estate, the limits of that estate (hence Julie could take her stuff back), and stated where he wanted his ashes to be dispersed;
  • There was enough evidence that the deceased intended the text to operate as his last will and testament. This included the facts that the message was crafted when the deceased was contemplating death, that the phone was found beside him, and that the instructions as to how to deal with his estate within the text were not contradicted by any previous statement he had made.

In arguing against the invalidity of the text message as a will and in favour of the normal rules of intestacy applying, Julie Nichol made much of the fact that the deceased had not sent the text message. Moreover, and somewhat oddly, she also relied on fact that the deceased and the applicant had a difficult relationship, and that the deceased had not made a will before an earlier suicide attempt.

However, Brown J concluded that the fact the deceased had not sent the message was immaterial; Brown J accepted the respondents’ submission that the fact that the phone and message were found beside him was enough – indeed, Brown J accepted that it was likely that the deceased had realized that if he had sent the message, his brother would likely have taken steps to prevent his suicide. Brown J was emboldened in reaching this conclusion due to the fraught relationship between the deceased and his widow. Brown J also noted that the deceased's relationship with his son, who stood to benefit had the laws of intestacy prevailed, was also strained.

Re Nichol [2017] built upon previous case law under the SA 1981, such as Re Yu [2013], where the same court held that documents created on an iPhone were documents in line with Section 5 of the SA 1981. Informality was also held to be no barrier to the court granting an application under Section 18 of the SA 1981 in Mellino v Wnuk [2013] – in this case, the court confirmed that a testator who had written ‘his will’ on a DVD, in which he discussed his suicidal intentions and defined his assets, had produced a document that purported to dispose of his property on death.

A Dispensing Power for English Law?

The approach in Queensland contrasts sharply with that in English law, even after the amendments to the WA 1837. The dispensing power in the SA 1981 functions to dispense entirely with the formality requirements under Section 10 to give effect to the intentions of a testator. Such dispensation is not the norm under the SA 1981, but has a valuable function in certain types of case – particularly those like Re Nichol [2017] or Mellino v Wnuk [2013], where the deceased succumbed to mental illness or suicide before formally executing a will, but had made his or her intentions informally and unequivocally known in a different document or recording.

The Law Commission, in its recent Consultation Paper, cautiously advocates both the introduction of a dispensing power in English law that can be exercised by the court, and a system of electronic wills to which such a power should be extended to include electronic documents and audio-visual recordings. Such a power would be be exercised in accordance with civil standard of proof: the balance of probabilities.

The paper, published before Re Nichol [2017], explicitly draws support from cases such as Mellino v Wnuk [2013] and Re Yu [2013], to argue that introducing a dispensing power to uphold testamentary intention would reflect the truism that formalities are a means to an end, not an end in themselves. While there may be a strong chance of increased litigation due to the institution of such a power, the Commission argues that this is not inherently objectionable. After all, a dispensing power would shift the focus of such litigation from upholding formalities to safeguarding testamentary intention.

The Law Commission further notes that English law’s treatment of formal wills is currently stuck in the past. It identifies the relatively recent case of Lim v Thompson [2009], where Judge Purle QC – in affirming one of the primary purposes of the Wills Act was to prevent fraud – held a photocopy of the testator’s signature did not meet the requirements of the Act.

It might be argued that the provision for rectification of wills was introduced by Section 20 of the Administration of Justice Act 1982 mitigates the need for a dispensing power. Certainly, there are cases – such as Marley v Rawlings [2014] where two testators wrongly signed each other’s will – which illustrate that there is a degree of overlap between how a dispensing power and a rectification power operate. However, there is no possibility that a power of rectification could have secured an outcome such as that in Re Nichol [2017]; English law would have flouted the intentions of a testator.

Conclusion 

The Law Commission has correctly identified that the English approach to formality requirements is outdated, both in its hostility to electronic wills, and in the way that it sees their enforcement as indistinguishable from giving effect to testamentary intention. It has therefore argued that although formality requirements should generally still be required, as they are highly indicative of testamentary intention, they should be incorporated into a new electronic system fit for the 21st century. This should be focused on:

  • Making electronic signatures in whatever form adopted (i.e. typed names, images of handwritten signatures or biometric signatures) secure;
  • Making the technology underpinning a system of electronic will-making technologically and commercially viable;
  • Ensuring consistency across platforms for electronic will-making.

The Law Commission does concede that its proposed reforms would likely be controversial, as the inadvertent introduction of a dispensing power in the US Uniform Probate Code proved. Equally, the Law Commission admits, in order to determine the need for the proposed power, it requires figures detailing the extent wills currently fail for non-compliance with formalities.

However, it is submitted that none of these concerns offer principled opposition to the introduction of such a power. Moreover, it should be noted that a dispensing power merely serves to prevent formalities from becoming self-defeating in exceptional cases like Re Nichol [2017]. The question for policy-makers should be how to implement a dispensing power in English law, not whether one should be introduced.

It must not be overlooked, though, that the case of Re Nichol [2017] provides a final cautionary tale. Although the respondents’ application succeeded, Brown J held the costs of both parties’ applications were drawn from the deceased’s estate. This expenditure of his estate on legal costs most likely negated his testamentary intention just as much as failing to recognise the message as his will would have. Any reform to English law must ensure that testators are the principal beneficiaries of such reform, both in theory and practice.   

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Tagged: Family Law, Wills and Succession

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