Composing your will in a text

The Law Society of England and Wales have supported the Law Commission’s proposal to give courts power to recognise informal wills when the will-maker’s intentions are clear.

If the laws south of the border are relaxed in this way there is the possibility that electronic messages such as text messages, emails and audio recordings will be deemed to be valid wills.  

This follows the recent decision by the Supreme Court in Queensland, Australia to uphold an unsent text message as a valid will. The text ended with the words ‘my will’ and was held to be a sufficient indication that the man who had composed it intended the message to operate as his will on his death.

The Law in Scotland

As with many things legal, the system in Scotland is different and will remain unaffected by any future changes south of the border.

In addition to being in writing, in Scotland wills need to possess three vital elements to be considered valid: -

  • the testator must have had the mental and legal capacity to make a will at the time they made it;
  • the testator must have intended the document to be of testamentary effect; and
  • the document must have been signed by the testator at the end.

In the absence of any of these three elements, the will is invalid and unenforceable. A text message, email or audio recording is not therefore currently capable of being deemed to be a will here in Scotland.

From 1 November 2016 if a will is revoked a previous will will not be revived. However, if in Scotland, electronic messages are not deemed to be testamentary writings this would mean that a previous will is not revoked. This previous writing would dictate the distribution of the deceased’s estate, or the estate would be distributed in accordance with the laws of Scotland. 

Our Advice

If you live in Scotland and have not made a will with a solicitor, we would encourage you to seek legal advice tailored to your circumstances. Not only will a solicitor be able to ensure you make a valid will, potentially saving thousands of pounds in legal fees on your death, they can also ensure your will is legally sound and advise on the best way to achieve your wishes. They can also assist with including testamentary trusts to help secure the future of young or vulnerable beneficiaries. There are many small things that can mean a will falls short of what the writer was intending.

Our team of solicitors would be happy to discuss your own circumstances with you and answer any questions you may have.  Please contact us on 0131 200 1200 to discuss further.