Will: Electronic wills will future proof the law
Plans to modernise will making – including allowing electronic wills – and reduce the number of disputes were today published by the Law Commission.
The first review of the Wills Act 1837 – which includes draft legislation to replace it – also recommends giving courts the power to give effect to a testator’s wishes even if the will does not comply with the formality requirements.
This might be “of particular assistance where a will is homemade, and therefore more likely not to comply with the rules on formalities than one drawn up by a professional lawyer or will writer”, the Law Commission said.
Though this power could introduce some uncertainty, it was justified given the benefits, while similar powers “have not led to a disproportionate increase in litigation” in other countries, including Canada, Australia and New Zealand.
The report said the court should also be able to rectify a will where satisfied that it does not give effect to the testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will – that is, a drafting error rather than just a clerical error, which is the current extent of the rectification power.
The Law Commission first issued proposals to reform the Act in 2017 but the work was paused in 2019 after the government asked it to prioritise work on the law around weddings instead.
Then in 2023, the commission published a supplementary consultation focusing on electronic wills and preventing ‘predatory marriages’.
“Throughout our project, we have made recommendations that will bring greater certainty and clarity to the law governing wills where it is possible to do so, making it easier to understand and apply the law, and to reduce disputes,” today’s report said.
Allowing electronic wills would “future proof” the law and the Law Commission was satisfied they could be valid in the same way as paper wills, “provided that they meet an additional formality requirement: that a reliable system is used to ensure the security of the will”.
The law should provide too that remote presence by way of “a visual transmission”, such as a video call, would amount to being in the testator’s presence for witnesses to electronic wills, or a person signing on the testator’s behalf.
To deal with predatory marriages, the report recommends abolishing the law that revokes a person’s will when they marry or enter a civil partnership, which it said few people are aware of.
There are currently two tests for testamentary capacity: one set in the 1870 case of Banks v Goodfellow to decide after the testator’s death whether they had capacity at the time they made their will; and the other in the Mental Capacity Act 2005 (MCA), when the Court of Protection is deciding whether a living person lacks the capacity to make a will.
The Law Commission said the latter should in future be the only test, but that the MCA’s code of practice should explain the elements of the 1870 Banks v Goodfellow test that were currently applied so that the “rich case law” on testamentary capacity was not lost.
The report said it was too difficult to challenge a will on the basis of undue influence, because of the difficulties of proving it, and so the courts should be allowed to infer that a will was brought about by undue influence where there is evidence which provides reasonable grounds to suspect it.
The evidential burden would then shift to the person seeking to prove the will to satisfy the court that it did not take place.
A related recommendation would place into statute the requirement that the testator intended to make the will in the terms that they did, so that they understood the contents of the will and its effects.
“We were concerned that there had been a tendency for wills to be challenged on the basis of a lack of knowledge and approval in circumstances where the real concern appears to be about undue influence, that is, that the testator understood the content and effect of their will but it did not reflect their own intentions.
“Putting the requirement for knowledge and approval on a statutory footing will clearly differentiate it from the law of undue influence.”
Other recommendations include reducing the minimum age at which a person can make a will from 18 to 16 – and even younger, with the court’s permission – and extending that the rule invalidating a gift in a will to a witness, or to their spouse or civil partner, to the cohabitant of a witness, as well as to a person who signed the will on behalf of the testator, and their spouse, civil partner or cohabitant.
But the court could save a gift in such circumstances where “just and reasonable to do so”.
It will now be for the government to decide whether to implement the recommendations.
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