The Wanted singer Max George recently revealed he ‘wrote his will from hospital’ before having surgery for a heart condition. He is reported to have said he was so convinced he wouldn’t make it that he took out his phone and started spelling out what to do with his assets.
George rose to fame in the early 2010s, with bandmates Siva Kaneswaran, Nathan Sykes, Jay McGuiness and Tom Parker. The Wanted announced a break in 2014 – and in 2022, George and Kaneswaran relaunched as a duo. George also appeared in Strictly Come Dancing in 2020 where he first met his now-partner, actress Maisie Smith.
Thankfully the surgery to fit a pacemaker to keep his heart beating regularly was successful and he was released from hospital on 23 December.
Reading the recent BBC report on this brings to mind the requirements under the Wills Act 1837 s. 9 (as amended) : –
9 Signing and attestation of wills
(1) No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)it appears that the testator intended by his signature to give effect to the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)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),
but no form of attestation shall be necessary.
(2) For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2024, “presence” includes presence by means of videoconference or other visual transmission.
There is no detail in the news report of how the singer signed his ‘Will’ or had it witnessed. Even the adjusted requirements applicable during the Covid pandemic that permitted video conference witnessing still required a signature. Electronic signatures were not permitted under those Covid era rules (or since) due to risks of undue influence or fraud.
The conclusion I reach is that whilst the report refers to a ‘Will’, this would not have been a valid Will in the eyes of English law. The mobile phone record – a note or text message or email perhaps – would in fact be more likely to be a “Letter of Wishes” than a “Will”.
A letter of wishes does not have the same signature/witnessing formalities as a Will. It is a document that can be drawn up to accompany your will but is not intended to replace it. Unlike a will, it is not legally binding, but it provides guidance for the people dealing with the Will.
A common use for a letter of wishes is to deal with lower value items such as personal belongings. For example a Will (made in compliance with all the signing and witnessing formalities) appoints trusted Executors and gives to them all personal belongings, often defined by lawyers as ‘personal chattels’, with an instruction that the Executors deal with those belongings as they deem fit and having regard to any letter of wishes left behind. You can use a letter of wishes to list your personal possessions and what you would like to happen to them. You can also update the letter when you want, to ensure that it still reflects your wishes as time goes by.
A signed and dated Letter of Wishes is likely to be clearer than a text message or note on a mobile phone, but people do approach these things in their own way, particularly when worried about medical issues. But it cannot be stressed enough, that a letter of wishes is not a will, and is not legally binding.
Finally, the last observation I share is an interesting contrast of the legal system in our jurisdiction with that in others. I find it fascinating that some other countries – Australia for example – have a different approach.
The Queensland Supreme Court held in 2017 that an unsent text message written on a man’s mobile phone shortly before he died (of suicide) adequately captured his testamentary intention. In doing so, the Court dispensed with the normal formal signing/witnessing requirements of a will, and allowed the text message to be admitted to probate: Re Nichol; Nichol v Nichol [2017] QSC 220.
The decision in the Re Nichol case is an example of the powers given to courts in some jurisdictions to validate a purported will where it does not meet the necessary procedural requirements. Contrast to the position in the England and Wales jurisdiction, where the requirements for creating a valid Will continue to be strict.
Creating a valid will in compliance with the Wills Act remains of vital importance in this jurisdiction. Don’t leave it until you are in hospital to think about making a will.