It was my great pleasure to co-author this article with Juliet Brook. Juliet is a Principal Lecturer in Law at the University of Portsmouth, specialising in property law. Her research focuses on the law of succession and she has written a series of detailed articles on testamentary dispensing powers, which you can find here.
This article first appeared on LawSkills, Gill Steel’s excellent website which is a mine of useful information for private client practitioners.
The exigencies of the coronavirus pandemic, which has led to a high demand for will writing services, and the challenges of meeting that demand whilst observing social distancing, have brought the issue of will reform into sharp focus. At a time when technology provides a solution to so many of the problems that we currently face, the insistence on wet ink and the physical presence of witnesses for the making of a valid will appears increasingly archaic. Citing the dignity and peace of mind that putting one’s affairs in order brings and the urgent need people have to make provision for those they may leave behind, Gina Miller and Baroness Helena Kennedy QC have this month called on the government to extend the provisions relating to privileged (wartime) wills to the current situation so as to allow purely oral testamentary statements to be admitted to probate.
The introduction of a statutory dispensing power, allowing a court to admit documents (including digital documents and recordings) to probate that fail to comply with the formal requirements for making a valid will, could provide an alternative solution to the difficulties currently faced by testators.
Statutory powers of this kind received a flurry of attention from English law commentators in 2017, following the Law Commission Consultation Paper on will reform, which recommended the introduction of such a measure, and the Australian case of Re Nichol  QSC 220 in which an unsent text message was admitted to probate under the Queensland dispensing power. Since then, the Law Commission has turned its attention to other matters and will reform has dropped off the radar.
Responding to a question in Parliament, Alex Chalk (Parliamentary Under-Secretary, Ministry of Justice), ruled out an extension of privileged wills, but confirmed that the government is reviewing the law on making wills in light of the current circumstances and that, in the longer term, the government will be looking at the case for reform arising from the work of the Law Commission.
It remains to be seen whether or not the government will introduce emergency legislation, such as a dispensing power, to address the predicament faced by people currently wishing to make a will. Nonetheless, the reinvigorated debate around will reform, and the present challenges faced by testators, have increased the likelihood that such a provision will make its way onto the statute books sooner rather than later and it is worth practitioners acquainting themselves with these sorts of provisions.
Intention based powers
The Law Commission’s Consultation Paper proposal was to introduce an “intention based” dispensing power, but there is a wide spectrum of such powers in force in other common law jurisdictions. These range from those that retain some formality requirements (usually a signature) to the extremely flexible.
Whilst it is not known which model would be adopted in England and Wales (if any), the dispensing powers that are in operation in Australia occupy a middle ground, so this article will focus on those. Although the statutory provisions differ slightly between states, the three questions posed in the New South Wales case of Hatsatouris v Hatsatouris  NSWCA 408 summarise the key requirements in each state, and have been applied nationally. These are as follows:
- was there a document?
- did that document purport to embody the testamentary intentions of the relevant Deceased?
- did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?
The requirement that there be a document matches the proposal of the Law Commission in their 2017 consultation paper, and the definition of ‘document’ in most states includes hard and soft copy documents and recordings (again reflecting the Law Commission’s proposal). The effect of parts (b) and (c) is that, not only must the document set out the deceased’s testamentary intentions, but the deceased must also intend that document to be their will.
A will admitted under a dispensing power is not valid ab initio. It is admitted to probate if, and only if, there is sufficient evidence adduced to demonstrate to the court that the deceased intended the document to be their will. It is proof of this specific intention that is critical to a successful application to admit a document under the dispensing power. The Australian courts have made it clear that preliminary steps towards making a will, such as instructions and draft documents prepared for ‘consideration, further thought, deliberation or possible revision’ (Lindsay v McGrath  2Qd R 160, ), will not suffice, as it cannot be said that the deceased intended that these operate as a will ‘without more’.
The closer the deceased has come to creating a validly executed will, the more likely it is that the dispensing power will be used. The relative simple Australian cases concern the admission of a traditional will-like document where an attempt at execution has been made but there was some error (usually concerning the witnessing). In effect, the court is applying reasoning of the “Duck Test” variety; if a document looks like a will, reads like a will, and the deceased treated it like a will, then on there are strong grounds from which to infer that the deceased had intended it to be his or her will.
However, a signature is neither necessary nor sufficient for the operation of the Australian dispensing power, so it has been used to admit many unsigned documents, including electronic documents and recordings. Such cases immediately raise eyebrows in England and Wales – is the lack of signature evidence that the testator was having second thoughts? When does an unsigned document stop being a draft, prepared for further thought and possible revision, and become a document that the deceased intended to operate as his or her will?
The reason behind the lack of signature is fundamental to success or failure in these sorts of cases; the Australian courts have considered whether there is sufficient evidence that the testator had ‘adopted’ the document. If the testator died shortly before signing, but after expressing their intention to do so, the evidence supports the inference that part (c) of the Hatsatouris test has been met. Mitchell v Mitchell  WASC 174, where the deceased stated that he would sign his will after a shower but then died in the shower, is a good example of this principle in operation. Although the case of Re Nichol caused some consternation when reported in 2017, again the circumstances were able to explain why the text had been adopted, even though it remained unsent. The text specified what should happen to the assets and ashes of the deceased, included the wording “my will”, and was considered by the judge not to have been sent because he did not want to alert his family to the fact that he was about to take his own life.
In contrast, a signature is no guarantee that the dispensing power will be used. Problems arise particularly with prevaricating testators; in Lindsay v McGrath, a handwritten document that even included dispositive language such as “I bequeath” was rejected because the deceased had made changes to the document after its initial preparation – even though she had initialled many of the alterations. The majority verdict from the Queensland Court of Appeal was that this was a document that was still subject to further deliberation and revision, and was not the settled testamentary wishes of the deceased.
The enormous variety of soft copy documents and recordings that are now being created puts further focus on part (c) of the Hatsatouris test. Whilst a recording on an iPhone that clearly stated “My Will” has been admitted (Re Yu  QSC 322), in Mahlo v Hehir  QSC 243 an unsigned soft copy will on the deceased’s computer was not admitted to probate because the deceased knew of the need to sign it in order to give it legal validity and there was evidence that the deceased had printed it out and signed a hard copy, although that could not be located. Although the court was satisfied that the deceased intended to make a will in those terms, the extraneous evidence was not sufficient to satisfy the court that she intended the electronic document itself to be her will; it was merely brought into existence as a step towards the making of a valid will.
It is cases such as these that clearly demonstrate that dispensing powers will not always give the results one might expect, or that would be most in line with the deceased’s intentions. The very flexibility inherent in a dispensing power means that there are no guarantees that any particular document will be admitted.
How might such a provision impact upon the advice given to testators?
Many informal wills are likely to come into existence without the input of legal advice and homemade informal wills will carry all of the dangers (increased suspicion, construction difficulties, partial intestacies etc) of DIY formal wills and more.
A formal will, compliant with the statutory formalities, will remain the recommended route in all but the most exceptional of cases even if a dispensing power is introduced. The reasons for this are no doubt obvious. Whilst the making of a formal will is not a guarantee that dissatisfied relatives will not seek to bring a challenge, the most cursory glance at the case law illustrates the considerable difficulties those seeking to challenge a will face. Informal wills do not have the benefit of the same evidential presumptions that arise in the case of a formally valid will and depend upon the exercise of a broad judicial discretion for their validity.
However, a dispensing provision would be a useful addition to the private client advisor’s toolbox; particularly given the challenges of the coronavirus crisis. The option to create an informal will would offer a solution for the client wishing to make a testamentary document in circumstances where compliance with testamentary formalities is not possible or as a stopgap until a formally valid will can be made. Private client practitioners advising on such an option must anticipate the need to evidence the requisite testamentary intent and adoption of the document as a will, and to preserve such evidence. Documents that have been prepared with the input of a solicitor, with provisions that are clearly expressed in testamentary language, where there is clear evidence of the adoption of the terms by the client, will be most likely to be admitted. In order to provide clients with as much assurance as possible, evidence of the reasons for making an informal will and the advice given must be retained. The adoption of the document by the client as his or her will may be demonstrated by incorporating a statement to that effect and signing the document or making a recorded statement.
What impact will such a provision have on probate practice?
A dispensing power, particularly one extended to electronic documents, will expand the categories of documents that may have a testamentary character and relatives will be tempted to trawl through texts, emails and other electronic records kept on data keys, computers and mobile devices in the search of something that could conceivably be an attempted will. Establishing the authenticity of digital documents presents different sorts of challenges to those that contentious probate practitioners are generally accustomed to addressing. Forensic analysis of any device upon which such a record is located may be required to establish the date and circumstances of creation and the possibility of tampering or fraudulently creating such a document.
Evidence will need to be gathered concerning the circumstances in which the document was found, as to how, why, when and by whom it came to be created, and of any statements by the deceased or other evidence demonstrating that it was likely that the document was intended to stand as a will and was in fact so adopted by the deceased.
Care will also need to be taken in pleading such cases. For example, consider a word file that has been created and which appears to be of testamentary effect. Metadata may need to be examined to see whether or not the document was printed and a judgment formed, based upon any other available evidence concerning the deceased’s actions and statements, as to whether it is the word file or the printed document that is the specific document that the deceased intended to form their will. On this basis, the claimant in Mahlo v Hehir came unstuck – in the absence of an alternative claim to prove the missing paper version, the claim failed, since it was not the word file that the deceased intended to form her will, but the hard copy.
A statutory dispensing power may reduce the risk of unwanted intestacies and financial provision claims where the deceased failed to revise their will to take account of a change in circumstances. There will be concern that the introduction of such a measure will provide greater scope for contentious probate disputes. Yet, even if that is so, this may be a reasonable price to pay for the benefit of a more flexible approach to giving effect to genuine, yet informal, expressions of testamentary intention.