It’s no surprise that not everyone will have left behind official instructions of how they would like their estate and assets to be distributed once they've passed away.

Occasionally before someone has passed away, rather than leaving an official Will they have left a Will in a less conventional format or have been ‘creative’ with some of the gifts they’ve left. Famously, in his last Will and testament, William Shakespeare left his ‘Second Best Bed’ to his wife and the mother of his children, Anne Hathaway.

This was an unusual bequest as under medieval common law in England, a widow was entitled to one third of her late husband’s estate, even if it was not specified in the Will. Since the medieval times, the law had changed vastly and thus the requirements for a valid Will.

Usually, a person’s Will is a legally binding document but occasionally there are instances where an informal document has been created that does not meet the legal requirements, but still records the deceased’s intentions. There are a number of different examples of informal Wills including online word documents, suicide notes, and video and voice recordings. Dealing with cases with an unusual or unconventional Will begs the question ‘is this Will valid or not?’

Recently in Australia, an unusual case occurred where the deceased wrote a text message draft stating that he wished for his estate to pass to his brother and nephew. Despite not adhering to the formalities, the court ruled the message as a valid Will. While instances like this may occur in Australia, the current rules in England and Wales for Wills must fall under the legislation i.e. Section 9 (a) of the Wills Act 1837 which states that in order for a Will to be legally valid, it must be in writing, signed by the testator and in the presence of two or more independent witnesses present who must also sign the Will.

The law in England and Wales that governs Wills was set out in the 1800s, The Law Commission acknowledges this legislation needs to be modernised to take into account changes and advancement in society, such as technology and medicine. This consultation on Wills includes proposals to ‘enable the court to dispense with the formalities for a Will where it’s clear what the deceased wanted’. This updated method would make it easier for people to put in place a valid Will but the timeline for these changes are still in limbo as the Commission has currently paused this consultation.

If the formalities of the current legislation are not fulfilled for whatever reason, then a Will may be considered invalid and intestacy rules will apply. Fraser and Fraser work as Probate Researchers for cases where there is not a valid Will. We provide specialist research and support to the legal profession by tracing next-of-kin who are entitled to a share of the estate.