The year 1837 was an interesting, even a momentous one. Any British schoolkid may remember that was the year Victoria became United Kingdom of Great Britain and Ireland Queen, and Defender of the Faith.
The government launched an enquiry into the possibility of carrying letters in a separate sheet which folded to become an envelope. And proposed the idea of a piece of paper which could be affixed to a letter to flag that postage had been paid.
Parliament passed the Wills Act on 3 July 1837, three days after it abolished using pillories to lock people in stocks as punishment. Since then many gigabytes of data have flowed under the bridge. We wondered why the ancient Wills Act is still in place.
How the Wills Act of 1837 Came to Pass
Various rules regarding deceased estates existed prior to 1540 under ecclesiastical law, common law and equity. However the power to leave real property to another person only saw the light of day in the Statute of Wills in 1540. The 1677 Statute of Fraud reinforced the idea that wills of real property had to be in writing.
A complex set of rules evolved in top of this menagerie to the extent the 4th report of the Commissioners for Inquiring into the Law of Real Property recommended a unified scheme in the early 19th century with this intention:.
“Any scrap of paper, or memorandum in ink or in pencil, mentioning an intended disposition of his property, is admitted as a will and will be valid, although written by another person, and not read over to the testator, or even seen by him, if proved to be made in his lifetime according to his instructions.”
The Main Chapters of the Wills Act as It Stands Today
- A will must be in writing and recording the testator’s wishes
- The testator must sign it, or another person in their presence
- The testator must intend that signature to give their will effect
- Two witnesses must observe the will being signed before them
- Their signatures are proof they saw this signature placed
Moreover, the person making the will must be 18 years or older, and their will expires if they marry. Unless, of course they were planning to marry when they signed. Finally, only a new, properly constituted will can override one already in place. This last requirement effectively traps us in 19th century.
Don’t You Think This Sounds a Tad Archaic?
We believe it is more than a tad archaic and we seem to have more people agreeing with us every time we ask. Our dictionary says ‘writing is a form of communication whereby we put our thoughts down on paper’ although we don’t suppose this eliminates the possibility of writing on a piece of wood.
Just because there were no emails or short message services on 3 July 1837, surely cannot mean there are no electronic ways of setting down our wills today.
Therefore we think it’s time for H.M.’s government to get this law up to date. UK courts are admitting emails and sms messages as evidence, although their validity is open to challenge as most other things are nowadays. So why not admit them as wills too may we ask.
