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Electronic Wills – a Distant Dream?18th November 2019 Commercial Litigation
In the current law governing Wills in England and Wales, legislation dating back as far as 1837 is still relied on today. Recent developments in technology and social culture have prompted calls for reform in this area, specifically in relation to a form of ‘Electronic Wills Act’ that would enable individuals to create and execute their Will electronically.
In response to this, the Law Commission began a public consultation in 2017. The completion of this has however been suspended, following the prioritisation of other matters and is yet to be resumed. This blog will consider how reform in this area may assist individuals, whilst also highlighting concerns and dangers that will need to be addressed as a consequence of any reform.
An advantage of introducing an electronic system whereby individuals can create and execute their Wills, is that this is a way to keep up with modern technological advances in society. Furthermore, this could make the execution of Wills easier for individuals and potentially more accessible.
Recent studies have revealed that around 50% of adults in the UK do not have a Will. There is a possibility that by modernising the process of drafting and executing Wills, this will enable more individuals to execute a valid Will, meaning that fewer individuals may die intestate. This could potentially result in fewer challenges to the estates of people who have passed away if provision has been made for them in a Will, rather than the distribution of the estate falling under the intestacy rules.
On the other hand, it is speculation to assume that modernising this process may result in fewer people dying intestate and fewer legal disputes. Furthermore, there are a number of potential risks and dangers associated with introducing an electronic based system. The first issue is security, due to the implementation of an electronic system, this may create a greater opportunity for fraud, especially if there are insufficient safeguards in place to protect vulnerable individuals from concerns such as: undue influence, capacity issues and issues regarding knowledge and understanding. In addition, as with any electronic platform, there are concerns with regards to cyber security, and adequate provisions must be in place to ensure the protection of individuals’ data and information.
In addition, the electronic platform must ensure compliance with the legal formalities that apply to Wills. For instance, in order for a Will to be valid in the UK, it should be signed by a testator, in the presence of two witnesses, who then attest and sign the Will. If an electronic system is put in place, how can this provide assurances that these formalities are taking place? Furthermore, there may be less evidence to assist in resolving any legal disputes that occur, as by its nature, the electronic system will reduce the need for face to face contact, reducing the availability of witness evidence.
Whilst in theory, an ‘Electronic Wills Act’ sounds like a significant step towards modernisation, there are a number of dangers and concerns that would accompany this, some of which have been highlighted above. Therefore, this aspect of reform will require careful consideration and thought regarding potential safeguards that should be put in place
A system similar to this has recently been introduced in the USA which enables individuals to create and execute a Will electronically. Perhaps an observation of this model can assist the Law Commission with their recommendations in order to reach solutions that will reduce the associated risks, whilst enabling modernisation and reform in this area.