In this article, we examine the Law Commission’s consultation on the implementation of electronic Wills (“the Consultation”) which has just closed for submissions. As part of this, we will consider the:
(a) current law on making a valid Will,
(b) witnesses needing to be ‘present’ (and how this changed during COVID),
(c) Law Commission’s views on the proposal,
(d) questions that they are posing in their consultation paper, and
(e) what the future might hold for how Wills are made.
1. Current law on making a valid Will
At present, there are three requirements for a Will to be valid.
1.1 Capacity
The testator (the person making the Will) must be aged 18 or over. They must also have a ‘soundness of mind, memory and understanding’ (which requires them to understand the nature of the act of making a Will, the property they own, and moral claims to the property that they ought to consider). The default position is an assumption that the testator is of ‘sound mind’.
1.2 Intention
Firstly, the testator must have general intention; meaning that they intend to make a Will, rather than any less formal document. Secondly, they must have specific intention; meaning that they intend to have the effect created by this specific Will. Again, there is a general presumption that intention is present.
1.3 Formalities
The formality requirements are set out in the Wills Act 1837:
(a) Section 9 – four requirements are provided:
(i) in writing and signed by testator (or by someone else at the direction of the testator),
(ii) testator intended by their signature to give effect to the will,
(iii) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time (these witnesses must be capable of understanding the significance of being the witness to a signature and not be a beneficiary of the Will), and
(iv) these witnesses must then attest (i.e. acknowledge) the testator’s signature (which must be done in the presence of the testator).
(b) Section 11 – provides an exception to the formality requirements above for “any soldier being in actual military service, or any mariner or seaman being at sea”. In these circumstances, Wills can instead be created with more relaxed formalities including simply speaking a Will for it to be effective. In practice these types of situations are rarely encountered.
2. Witnesses needing to be ‘present’ – COVID
The section 9 requirement for a witness to be ‘present’ when the testator signs has a broader applicability than the legislation might infer. For example, in the case of Casson v Dade it was held that the witness merely required a line of sight on the Will, meaning that the witness was present where there was a window between them and the signing testatrix.
In July 2020 as the COVID pandemic restricted social interactions, section 9(2) of the Wills Act 1837 was implemented via a statutory instrument to expand the meaning of ‘presence’ to facilitate witnessing by means of videoconference or other visual transmission. This initially applied to Wills made between 31 January 2020 and 31 January 2022 (inclusive). This extension did not apply to instances where someone signs a Will on behalf of a testator (e.g. due to the testator’s physical inability to do so themselves).
The statutory instrument was accompanied by government guidance which set out the preferred process for virtual witnessing:
(a) Testator physically signs the Will on a video call in such a way that the witnesses can actually see the testator sign the Will (not just their head and shoulders),
(b) The Will is then sent to the witnesses,
(c) A further videocall is held, where the witnesses sign the will in the virtual presence of the testator.
In this process, the Will becomes valid upon the last of the witnesses signing.
These changes to the Wills Act have been extended to 31 January 2024, albeit guidance indicates that the method should be used as a last resort.
Extent to which this was used in practice
Our experience during COVID was that though there was a method for the virtual signing of Wills, the logistics of this process and the importance of ensuring that Wills were validly executed meant that in nearly every case the standard method of signing was used. In most cases this meant signing on garden tables, through windows, or on car bonnets in driveways with each person stepping up to the document in turn.
Our experience appears to be mirrored within the market (albeit perhaps for different reasons), with a 2021 study of private client lawyers finding that:
“only 14% had used electronic witnessing… The main challenge for electronic witnessing appears to be the perceived risk of undue influence, with 44% of respondents commenting on this risk... In the case of elderly and vulnerable testators, relatives may need to assist with technology, but their presence can influence the testator”
3. Law Commission’s views
The Law Commission note several potential methods by which electronic Wills could conceivably be created in the future, including:
(a) Electronic signatures: by using platforms such as DocuSign. These are prevalent within the world of commercial contracts, though the Law Commission are wary about their usage in the context of Wills, due to the necessary additional security required.
(b) Distributed Ledger Technology / DLT: eg. blockchain technology used to facilitate cryptocurrencies. The Law Commission appear more supportive of electronic Wills in this context, with the technology providing further security and certainty that there is just one valid Will being executed.
(c) Locally-saved document on a computer: while this opens up accessibility and ease of creation of Wills, it could increase the risk of undue influence, fraud, and confusion as to which Will is the ‘final’ one.
In the Consultation documents, the Law Commission acknowledge that consultees to the Commission’s 2017 consultation “were wary of electronic wills or did not think that their potential benefits outweighed their perceived drawbacks, particularly in relation to the potential risk of fraud and undue influence”. They cite the impact of COVID as prompting the need for a re-consultation on this topic in order for them to test the waters and understand whether there is now sufficient appetite and trust in electronic Wills.
The functions of the existing regime
The Law Commission note that any regime of electronic Wills needs to replicate the protections and formalities that paper Wills provide as far as is possible. The four functions of the existing regime identified by the Law Commission are:
3.1 Evidentiary: ensuring that there is evidence that the testator has made a Will
The Law Commission argue that this could be achieved by using some type of block chain or authenticated electronic signature “in conjunction with an express requirement mandating a single authoritative version to be made and kept”.
3.2 Cautionary: ensuring that the testator understands the seriousness of creating a Will
The Law Commission argue that the use of paper is not central to achieving this function, so are not concerned about this function being eroded by electronic Wills. However they do suggest that ‘video wills’ might not be appropriate, as the creation of a video would be unlikely to “impress on testators the legal significance of making a will, given that making recordings using personal devices is relatively common”.
3.3 Channelling/Labelling: ensuring that the executors are able to access the testator’s wishes in a clear and unambiguous form
As with the cautionary function, the Law Commission do not see this function as a sticking point, largely due to being able to provide as much certainty with Wills drafting in an electronic version as a paper version (but again, the Law Commission warn against the implementation of video wills).
3.4 Protective: mitigating the risk of fraud and undue influence
This is the function that the Law Commission is most concerned about being eroded by electronic Wills. Namely, they cite that “specific rules or requirements will be necessary” to ensure that this function is maintained. For example, by requiring for the testator to hold up the first page of the Will and the page to be signed, to the camera.
The Law Commission’s conclusion
Ultimately, in large part due to their concerns around how the protective function can be achieved by electronic Wills, the Law Commission conclude that “electronic wills should not be accepted as valid under section 9 of the Wills Act 1837”. Instead, a separate regime should be setup that provides “specific formality requirements for these wills… [that seek to] ensure that the functions served by the formality requirements are met by an electronic will at least to the same standard as they are met by a paper will that is executed under section 9”.
Other jurisdictions have seemingly embraced electronic Wills already. For example, in Victoria, Australia, they have inserted new sections into the Wills Act 1997 to allow electronic witnessing, provided, amongst other requirements, that one of the witnesses to the Will is a lawyer or magistrate (a “special witness”) who can ensure compliance with the remote execution procedure. Several US states (including Arizona and Maryland) have also made changes to allow a form of electronic Wills.
It will be interesting to see the extent to which the separate regime supported by the Law Commission – should they stick with their original views after receiving the Consultation responses – leans on the approach taken by other jurisdictions.
4. Questions within the consultation paper
In light of the Law Commission's position that electronic Wills should not be recognised under existing legislation, they have invited consultees to provide their views on the mechanics of how they envision electronic Wills being implemented, if at all. Preliminarily, the Law Commission have suggested two potential routes for consideration:
4.1 New Wills Act including an enabling power: this would be exercisable by the Secretary of State and permit the Secretary to create secondary legislation that would permit electronically executed Wills or fully electronic Wills that complied with the secondary legislation to be recognised as valid. The rationale behind this route is to cater to the perceived inevitability of electronic Wills, whilst accepting that there is significant uncertainty around how to implement them at present while maintaining the various protections inherent in the steps needed for a paper Will. Instead, via an enabling power, the technical details will be dealt with at a future time by the Secretary when the path forward is clearer.
4.2 New Wills Act that allows and outlines the requirement for electronic Wills. This proposal would constitute a much more definitive and significant step towards the introduction of electronic Wills, though could be seen as premature in light of the uncertainties as to what format electronic Wills might take. This option would, however, ensure that any legislation setting out the details of electronic Wills would be subject to the scrutiny of Parliament.
At present it appears unclear to us what format electronic Wills might take, but it seems inevitable that some form of electronic Wills will appear in the future.
At present, there are still some significant unanswered questions: in what timeframe, using what technology, and at the possible expense of what protections for those making Wills? Further to this, there remain concerns surrounding fraud and undue influence if Will signing moves away from the tried (albeit perhaps to some, tired) process of physical documents. Until these concerns can be adequately mitigated and suitable processes are able to make use of advances in technology, we suspect adoption (even if permitted under the legislation) might be slow.
5. Next steps
The deadline to respond to the Consultation closed on 8 December 2023.
We await the Law Commission’s follow-up paper summarising responses. It will be interesting to see whether the appetite for this (arguably) inevitable step for Will-making in the England and Wales has grown since 2017.
This article was written by Callum Duckmanton (Trainee Solicitor in our private client team) and Andrew Kerr (Senior Associate in our private client team)