In their Report, Modernising Wills Law, the Law Commission of England and Wales have recommended the introduction of a dispensing power. This power would enable the court, on application, to dispense with the formalities for making a will and admit a document to probate.
This recommendation is in line with their 2017 Consultation Paper, when they proposed that the dispensing power should apply to ‘documents demonstrating testamentary intention.’ The accompanying draft Wills Bill and guidance notes sets out the detail of the proposed power and this article will explain how these provisions would operate.
The dispensing power is in clause 10 of the draft Wills Bill:
10(1): Where one or more of the formality requirements are not met in relation to a will, a person may make an application to the court for an order under this section.
(2): The court may, by an order under this section, deem the formality requirements to be met in relation to the will.
(3): The court may make an order under this section only if it is satisfied that the will—
(a) demonstrated the testamentary intentions of the deceased person at the time it was made, and
(b) continued to demonstrate the testamentary intentions of the deceased person until their death.
(4): References in this section to a will do not include a will that is not contained in a document.
(5): See sections 7(2) and 8(2) for further provision about the power to make an order under this section in relation to alterations to wills and the revocation of wills.
First of all, as proposed in the Consultation Paper, the proposed power is an intention-based power. Intention-based powers are to be distinguished from those that require substantial compliance with the formality requirements. Whilst substantial compliance models may sound logical (they should cover the ‘near miss’ situations where a testator has only signed in the presence of one witness, for example), they have had limited utility in practice, with few informal wills being held to have the requisite level of substantial compliance. The Law Commission’s preference for an intention-based model is therefore understandable, but this focus on testamentary intention is new territory for practitioners.
Secondly, the power can only be applied to ‘a will’ that is contained in a ‘document’ (Clause 10(4)). The Law Commission indicate that ‘document’ includes ‘written and electronic records…(including sound and video recordings)’ (para 6.76), noting that ‘it is well established that references to “documents” in legislation in similar contexts include, for example, text messages, social media messages and emails.’ Thus, the dispensing power is limited to documents of record, and would not cover purely oral statements. Case law from other jurisdictions has included audio and video recordings within the definition of ‘document’ (see, for example, Re Estate of Wai Fun Chan [2015] NSWSC 1107). Recorded voice notes would, therefore, appear to be documents, but disappearing Snapchat messages would not.
Thirdly, the clause proposed by Law Commission contains a general intention dispensing power; the document merely needs to demonstrate the deceased’s testamentary intentions. This is in contrast to a specific intention dispensing power which would require the court to be satisfied that the deceased intended that a specific document operate as their will. The significance of the difference can be seen by considering an attendance note from a client meeting, in which instructions were taken for their will. The attendance note would set out all of the client’s testamentary wishes, but the client would not intend that the attendance note be their will; they would expect the note to be used to create a formal will. However, if the client died before executing a formal will then the proposed dispensing power would enable the attendance note to be admitted to probate if the court is satisfied that the note meets the intention requirements discussed below. Clearly, it would still be better for the client to be able to execute a valid will before death, but it is the inequities that arise when testators die between giving instructions for a will and executing it that is one of the main drivers behind the introduction of a dispensing power (as discussed in paragraphs 6.38 to 6.39 of the Report).
Finally, the power would apply to documents created before the Act came into force, provided that the death occurred afterwards. Whilst there is no time limit on the retrospective use of the power, a document can only be admitted under the dispensing power if it meets the intention requirements. These therefore need to be considered in detail.
Testamentary Intention
For the court to admit a document to probate under this power there are two separate requirements for testamentary intention, i.e. the intention make a disposition of property, to take effect after death and which is revocable until then. The first is that the document must demonstrate the deceased’s testamentary intentions at the time the document was made, and the second is the document must continue to demonstrate these intentions until the death of the deceased. This second provision has been included to alleviate some of the concerns with dispensing powers, namely that they can result in out of date documents being admitted to probate. The older the document, the more likely it is that there will be proof that the testamentary wishes set out in the document altered prior to the date of death. The need for this second limb is illustrated by the recent Californian case of Re Berger 91 Cal App 5th 1293. The Californian dispensing power only requires that the document demonstrates the testamentary intention of the deceased at the time of its creation. In this case, a will made 18 years before the deceased’s death was admitted to probate, despite there being evidence that the deceased had decided that they no longer wished to benefit the named beneficiary (their former partner). The Law Commission’s double intention requirement will prevent similar uncomfortable outcomes.
It is, therefore, entirely appropriate that the draft Bill requires continuity of intention. However this requires a change of mindset, with a far greater focus on the events after the document was made. The evidence gathering after someone’s death therefore must not stop at identification of a will-like document; it would need to extend to later conversations with friends and family to determine whether the document continued to reflect the testator’s wishes.
Unsurprisingly, case law from other jurisdictions indicates that the most contentious situations arise where there are more complex family dynamics. Informal wills may be hurriedly made after the break-up of long term relationships, or when the testator has been recently bereaved. Furthermore, some of the cases involve testators who have suffered from mental health conditions or domestic abuse. The standard of proof for exercise of the dispensing power is the usual civil standard, but the Law Commission expect the courts to be ‘cautious in their application of the dispensing power’ with a requirement for ‘cogent evidence’ to demonstrate that the document ‘on the balance of probabilities, reflects the testamentary intentions of the deceased person’ (Para 6.63). Careful consideration of all of the subsequent events in the testator’s life will be essential.
The focus on testamentary intention will be the biggest adjustment for practitioners. Validly executed wills raise a presumption of testamentary intent. Many informal wills are made by those who do not regularly seek legal advice, and will therefore be written in colloquial language; testamentary intent will need to be inferred from the wording. Discussions about the meaning of words that are usually restricted to (rare) privileged wills cases may come to the fore; do phrases such as ‘All of my stuff to X’ or ‘X will get everything I own’ demonstrate the requisite testamentary intent? (See, for example, Hodson v Barnes (1926) 43 TLR 71 and In the Estate of Knibbs [1962] 1 WLR 852).
It is important to note that the dispensing power applies to alterations to, and revocation of, wills as well. This is a necessary corollary to ensure that an informal will could operate to revoke an earlier, validly executed will. It will also enable the court to accept partial acts of destruction as sufficient revocation of a valid will. However, this again requires practitioners to consider the documentary evidence in a new way. Take, for example, the testator who makes an informal will and then alters it. The alteration would show that the deceased did not continue to hold the original intention until the time of their death. However, the altered document could itself be admitted to probate under the dispensing power if the evidence demonstrated that the altered document demonstrated the deceased’s intentions at the time it was made, and continued to do so until the death of the deceased. Problems will arise with prevaricating testators; repeated alterations to a document could indicate the document was merely deliberative. In case of Lindsay v McGrath [2015] QCA 206, the Queensland Court of Appeal rejected a document that the deceased had regularly altered on the basis that it did not show settled testamentary intent.
Conclusion
The government has welcomed the Report and draft Bill, but the provisions within the Bill could change as it progresses through parliament. However, it seems likely that dispensing powers will be introduced. Those email instructions, and subsequent correspondence, may prove to be more significant than ever.
