There are clear legal requirements for a legally binding Will to be valid – chiefly, that it's signed by the person making it and two witnesses. We look at a 2022 court ruling that shows an interesting application within the modern day.
Whether a professional writes your Will or you do so yourself, for a legally binding Will to be valid:
- it must be in writing
- you must sign it
- you must have two independent witnesses sign after you do
There are other rules, of course, but those are the core requirements. Not only that, they’re strict.
What, then, of Dr Cooper who left only a typed Will on his computer’s word processor, without any signatures? If the law is so strict, why did a court decide that an electronic document that did not truly, fully fulfil any of the key requirements to be valid and binding?
To understand this decision that seems to undermine the law of Wills, we must examine some of this particular case’s facts, and recognise that it relies as much on well-established principles as it does seem to adapt to the age of IT.
Some legal speak
Whilst you might have heard of these before, it pays to understand a few key terms:
- Testator means the person who made the Will
- Grant of probate (or just probate) is basically a court order that confirms that the Will is valid, and allows the person’s estate to be dealt with when they’ve died – for instance, their house to be sold and bank accounts closed
- Estate means all you own – house, cash, belongings – even pets!
- Revocation (or revoking) here is the official cancelling of a Will, so it no longer can be binding when you die. Making a new Will usually revokes (in effect, replaces) any made before it
The case of Cooper v Chapman
There was a lot in play here, and much of it is very sad.
After making a Will in 2009 that left his estate to his two children, Dr Cooper suffered severe ill health in the intervening years, ultimately losing contact with his children and divorcing his wife, their mother.
Then, in 2018, Dr Cooper made a new Will – this time leaving all his estate to his (by then) partner, and revoking the 2009 one. His children, he said, had been provided for in the divorce settlement.
Now the problem: when Dr Cooper died, all that could be found of the 2018 Will was the typed draft, not the original signed paper. Naturally, his children argued the 2009 Will therefore stood, whilst his partner argued the other way.
This blog’s title is a spoiler: the partner succeeded. How? Primarily because she was able to show, on the balance of probabilities, that (although a typed draft) the document on the computer contained what Dr Cooper had intended to be his last Will. IT experts helped to show that no amendments had been made to the typed document since Dr Cooper finished the draft. Furthermore, there was evidence enough to show the 2018 had been printed and properly signed and witnessed – but had unfortunately been lost afterwards. And finally, but just as importantly, there was enough to show Dr Cooper’s circumstances had not materially changed between his 2018 and his passing. He was still in relationship with his partner, and estranged from his children, and probability favoured him not having decided to destroy the 2018 Will to revoke it.
Thus, probate was granted of the 2018 Will and his partner inherited his estate.
So do the legal formalities still matter?
Yes. Very much so!
The court used well-established principles of gathering evidence (witness statements and so on) of a testator’s intention, to decide what their intentions were on the balance of probabilities. The use of computer experts was also notable. Whilst the case did not turn on this point alone, we will watch with interest for any further cases involving IT.
This case doesn’t show that the requirements can be ignored – unless you want expensive and harrowing litigation like Dr Cooper’s partner and family. Remember, a Will can be homemade and perfectly valid, but we’d always advise you see a professional to ensure it does what you want it to, and that a clear record is made of it being validly signed to avoid difficulties later on. The word probate derives from Latin, essentially meaning ‘for certainty’ – important, then, not to make it uncertain!
Blake Morgan’s experienced lawyers can give a broad range of advice on how to structure your Will and plan for the future – get in touch to discuss how we can help with legally binding Wills.
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