Why would a Will on the back of a fish finger box be valid but not a Will on an iPhone shortly before potentially life-saving surgery? We previously wrote about the decision in The British Diabetic Association vs Chenery before judgment was subsequently handed down this month. That Will was found to be valid, but another 'Will' which has received a great deal of news coverage was that of singer, Max George, who stated in the press that he had made a Will on his phone before having major heart surgery. Unfortunately, whilst the food packaging Will was valid, this form of 'digital Will' of Mr George's would fail to meet the requirements for a valid Will in England and Wales.
Legal requirements
Despite the world becoming increasingly digital where apps and websites manage so much of our day-to-day lives, the requirements to make a Will are still as detailed in the Wills Act 1837. While a 'Will' itself does not need to have any prescribed form of wording, section 9(1) of that Act requires that no Will is valid unless:
- it is in writing and signed by the testator (or by some other person in his presence and by his direction);
- it appears that the testator intended by his signature to give effect to the Will;
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either: (i) attests and signs the Will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
It is also usually understood that where the Will is on more than one page, those pages are bound together (although this is not detailed in the Act).
Summary of the case
In this matter, Mr Chenery had written his purported Will on the back of a mince pie box and a fish finger box. Those two pieces of card had not been attached together but he had signed the document and then asked a Mr Winteringham and his partner to witness the (already signed) Will. The claimants, The British Diabetic Association (the would-be beneficiaries), sought to prove the Will in solemn form, namely asked the Court to confirm the validity of this unusual Will. Not only had Mr Chenery's Will been set out on two separate pieces of cardboard, but it had already been signed when he presented it to be witnessed.
Master MacQuail found that it was clear that the two pages were intended to be a Will and that in Mr Chenery presenting the documents to be witnessed, describing it as a Will, this met with the requirement that his signature was 'acknowledged'. There was no requirement that the pages of the would-be Will were bound, or that the witnesses had seen the first page, provided the whole Will was "in the room" at the time of attestation.
What does this mean for future unusual testamentary documents?
Both this decision, and other recent decisions, suggest that the Court will seemingly go to great lengths to find a testator's intended Will to be valid and avoid a situation where an intestacy arises (meaning that the estate is distributed according to statutory requirements, usually to family members, and not necessarily to the beneficiaries the would-be testator would want to benefit). What this won't extend to however, is a 'digital Will', such as Mr George's, which is neither signed nor witnessed, which would instead amount only to an indication of wishes.
Whilst the case may prompt discussions about the potential for reform of the Wills Act to reflect modern practices, especially considering the rise of digital assets and the increasing use of technology in personal affairs, until such reforms are enacted, the judgment reinforces the importance of adhering to the formal requirements of the Wills Act. Doing so minimises the risk of a Will being contested or deemed invalid, providing certainty and peace of mind for both the testator and his/her intended beneficiaries. In this case, the vast majority of Mr Chenery's family agreed that the charity was his intended beneficiary. If they had not done so the outcome might have been different.