The Law Commission’s supplementary consultation paper on electronic wills

It is fair to say that the covid-19 pandemic was something of a watershed moment in our relationship with technology. The technological advances brought forward by lockdowns across the world have had far-reaching consequences; recently prompting a short supplementary consultation by the Law Commission on possible reforms to enable electronic wills.

This follows their 2017 consultation paper 'Making a Will', the results from which have themselves been delayed by covid. While preparing their final report on this project, the Law Commission felt that digitalisation needs to be addressed again. The consultation also seeks a fresh look at the rule on revocation by marriage or civil partnership in view of increasing concerns about so-called ‘predatory marriages’ (which is beyond the scope of this article).

The supplementary consultation

Technology is already involved in will drafting (to a degree unimaginable to those who oversaw the Wills Act 1837!), using digital templates and (for a limited time) remote witnessing. Yet, wills still need to be printed and wet-ink signatures applied. The Law Commission is now proposing to get ahead of the curve by establishing a legislative foundation for electronic execution and fully electronic wills. They do not propose what the formalities will be for electronic wills – other than the need for a bespoke regime.

The key question in this supplementary consultation is whether legislation should take the form of an enabling power, allowing the Secretary of State to permit electronic wills through a statutory instrument; or whether a new Wills Act should be laid before parliament, which could make compliant electronic wills valid – or at least subject to requirements laid down in further regulations. Such a development is not necessarily a given, however.

Although it acknowledges that current changes are underway to allow digital lasting powers of attorney, the consultation points out that wills are unique documents – unilateral expressions of a testator’s wishes that can be, and often are, made without the oversight of any professional. They facilitate a fundamental principle in English law: that although a will may be challenged, a person is free to dispose of their estate however they wish.

The same strain of thought informed a proposal in the last consultation paper to broaden the dispensing powers which would allow the court to ‘bless’ an informal will – it could be scribbled on the back of a napkin, and still be deemed valid if it was a clear expression of intentions. The supplementary consultation has not followed up on those proposals, but the idea that electronic wills are a tool to make it easy and simple for a testator to express their wishes clearly shares the same intellectual DNA – upholding ‘testamentary freedom’.

The concerns

Questions remain, however, about the wisdom of moving swiftly towards facilitating and even normalising electronic wills. Technology is of course constantly evolving – any changes in the law cannot be allowed to be over-reliant on platforms which may be redundant in a decade or less. Furthermore, many types of electronic documents cannot be stored for long periods without the risk of obsolescence rendering them unreadable. How many solicitors could today access a will, made just 20 years ago, on a floppy disk? The nature of electronic documents could also signal the end of revocation by destruction, and challenge the notion of a single original will (although this could perhaps be overcome in the future by distributed ledger technology).

Security is also an ongoing concern. Existing electronic signature methods are held to be insufficiently protective against fraud in a wills context. The consultation acknowledges that more sophisticated and secure forms of electronic signing are likely to be required (and widely used) before the process becomes feasible.

Above all, the question remains whether it is necessary to pursue immediate change at all; especially since the Law Commission doesn’t feel there is a drive to adopt electronic wills on the scale necessary to bring this into being at present. Despite these concerns, there is a feeling of inevitability around electronic wills and the Law Commission clearly feels bound to make recommendations while undertaking this project. There is certainly no putting the technological genie back in the bottle. Yet there remains limited appetite, and widespread scepticism among legal practitioners. If we are to move forward, then it must be with caution and with the technology, not in advance of it. One cannot legislate for a reality which has not yet arrived.

Emma Haley is a legal director and Tom Heathcote is a trainee at Boodle Hatfield
boodlehatfield.com

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