Texts, emails and voicemails could be considered a valid will by courts under a radical overhaul of inheritance laws being proposed by the Law Commission.
It believes present rules concerning wills are outdated and need to be brought into the “modern world” because they are “failing to protect the vulnerable” by not taking into account conditions like dementia.
While it accepts its proposals on electronic communications could cause family arguments or worse, it said the current rules are “unclear” and their strict formality needs to be softened to encourage more people to make a will.
Around 40% of people die without making one.
The Government’s law reform advisory body has launched a consultation on its recommendations for smartphone, tablet or other messages to be recognised as a will if approved by a judge.
It would mean the family of a car crash victim who did not make a will could apply to have the intentions they expressed in a text message, email or voice recording recognised as a last testament.
Proposals also include a call for the legal age to write a will to be lowered from 18 to 16, and a new mental capacity test which takes into account conditions which affect decision-making like dementia.
Image: Some 40% of people die without leaving a will
It said: “We note that the potential recognition of electronic wills via a dispensing power is a double-edged sword.
“On the one hand, it seems essential that the power be applicable to electronic documents.
“Testators (people making a will) who do not follow the formality rules – either through ignorance of them or necessity – are increasingly likely to use electronic means.
“For example, a person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.
“On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives. They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power.
“In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious.
“While there are arguments on both sides, we take the view that, on balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power.”