Electronic wills: the Law Commission speaks

The Law Commission is consulting on the law governing the drafting of wills. One of the issues is the use of electronic wills.

probate, private client, electronic wills

It is suggested that 40 per cent of the adult population die intestate, yet the intestacy rules are inflexible and do not necessarily provide as they should, i.e. for cohabitants. This leads to disputes and family disharmony. If there is a way to make the will drafting process easier and potentially cheaper, it should be considered.

The law that governs the drafting of a will dates from 1837 and the most well-known case on testamentary capacity dates from 1870: Banks v Goodfellow. To be valid a will (or a codicil amending a will) needs to be signed in the presence of two witnesses who then sign themselves. This clearly is intended to protect the testator and guard against fraud or undue influence. It also presupposes that the will is a paper document.

Should Victorian-era laws support such an important process in these times of digitised services? It was recently reported that HM Land Registry was open to the testing of digital mortgages, i.e. a system allowing borrowers to sign deeds electronically through an online authentication process. Should the population be permitted to sign (or create) wills in a similar way and what does that actually mean?

Wills must obviously represent the intentions of the testator. A handwritten signature is the most secure method of ensuring this. The signature can be analysed and found to be connected (or not) with the testator by the use of forensic evidence. An electronic signature should be no less secure. Clearly a simple typed name is insufficient, but complex biometric signatures or the use of passwords or PINs come with their own complications and challenges and often require access to technology or an infrastructure that is out of the reach of many people (and which can fast become outdated).

Equally the storage of an electronic will has its own list of problems. Technology is constantly evolving, and certain formats become obsolete and can be subject to hacking. In addition the Wills Act allows a will to be revoked by the testator physically tearing it up, but can an electronic will ever truly be destroyed?

The advantages of electronic wills are clear: convenience for the consumer (who is used to dealing with many aspects of their life on a digital basis) and consequently a possible decrease in intestacies. Electronic wills may also be easier to update and easier to store (and find after death).

However the challenges are (as they have always been) to guard against fraud and undue influence in an age when the population is ageing, the incidence of dementia is on the increase and there are more complicated family structures. Arguably ensuring that a testator has testamentary capacity and that his or her wishes are free from influence, may well be more important than convenience.

The Law Commission is right to consult on ways to facilitate an easier will-making process, but it appears there is a lot of work to do ensuring security and protecting the vulnerable among us.

Alison Regan is a partner at Russell-Cooke