Creating a will is one of the most important steps you can take and an essential part of planning for the future, but can you create a valid will on WhatsApp?
In England and Wales, the legal framework for drafting a valid will is governed by the Wills Act of 1837. WhatsApp, of course, didn’t exist when this law was established! This piece, created by Howell Jones’ probate solicitors in Surrey, will explore whether it’s possible to create a will via WhatsApp by examining the essential legal requirements for drafting a valid will.
What Are the Requirements for a Valid Will?
For a will to be legally valid, certain conditions must be met:
- The testator (the person creating the will) must be at least 18 years old.
- The testator must be of sound mind and fully capable of making the will.
- The will must be written down, and the testator must sign it (or in certain cases, someone else can sign on their behalf in their presence).
- The will must be signed by the testator in the presence of two witnesses, or the testator must acknowledge their signature in the presence of two witnesses.
- Two witnesses must also sign the will in the presence of the testator.
These fundamental requirements are difficult, near enough impossible, to replicate in the digital world, especially on platforms like WhatsApp. However, during the COVID-19 pandemic, the UK government amended the Wills Act, allowing for remote witnessing of wills via video calls. Some other jurisdictions have adopted similar changes, and some of these measures have become permanent.
The Law Commission and Electronic Wills
In 2017, the Law Commission began consulting on the topic of electronic wills. Although the consultation was paused between 2019 and 2022, it resumed in October 2023. The Commission released a supplementary consultation paper, which closed on December 8, 2023.
One of the primary topics addressed in the consultation paper was how a will could be executed electronically while still adhering to the requirements of the Wills Act. The paper also explored whether special provisions are necessary for electronic wills and the possibility of a new Wills Act to accommodate them. There has been no further progress since the consultation period ended.
Why WhatsApp is Not Valid for Creating Wills
WhatsApp is designed for quick, informal communication, and messages are typically sent in short bursts and may not form one continuous, cohesive piece of text. This fragmented nature would make it difficult to demonstrate a clear and final expression of someone’s wishes, which is essential for a valid will. Additionally, WhatsApp’s automatic deletion settings and features, such as disappearing messages, pose a serious issue for the long-term preservation of a will. Legal documents such as a will must endure and remain intact and accessible over time, but WhatsApp’s lack of permanence undermines this critical requirement.
While we can’t predict the future, there is currently no indication that WhatsApp will be a valid platform for creating a will. And as it stands, WhatsApp does not meet the necessary legal requirements and standards for writing and executing a will. Although discussions around electronic wills are ongoing, and the law may evolve in the future, anyone looking to ensure their wishes are properly documented and legally recognised should use established methods when making a will.
For assistance or advice in creating your will, contact our Surrey solicitors’ Wills & Probate team.
