The Law Commission has set its sights on England and Wales becoming the first major jurisdiction in the world to allow electronic wills by proposing that the Lord Chancellor is given the power to introduce them by statutory instrument.
In a wide-ranging consultation on wills launched today, the commission also proposed giving the courts a dispensing power to treat a document as a will where the formalities are not followed.
In a further steps designed to make it easier for people to make wills, the commission suggested lowering the minimum age of testators from 18 to 16 and applying the test of capacity in the Mental Capacity Act 2005 to wills.
The aim is to update the Victorian law underlying wills and ensure it does not put off people from writing one; 40% of people currently die intestate.
The commission admitted that it was “not aware of any major jurisdiction that has successfully introduced electronic wills” and although the US state of Nevada had introduced a statute in 2001, “the statute’s technological requirements have proved so difficult to satisfy that no current technology can meet the prescribed standards”.
However, the commission said it wanted to ensure that any transition to electronic will-making was “as smooth as possible”.
It highlighted the need for electronic signatures to be secure, for “viable” infrastructure to support electronic will-making, and a degree of consistency across different platforms rather than a “free for all” which could create uncertainty.
“The issues of security, viable infrastructure, and consistent implementation all indicate that a balance needs to be struck between regulating electronic wills and allowing enough flexibility in the law for electronic wills to develop.
“Our current view is that the balance is best struck by conferring on the Lord Chancellor the power to make provision for electronic wills by statutory instrument.”
The Law Commission proposed that the Lord Chancellor’s enabling power should be “neutral as to the form that electronically executed or fully electronic wills should take, allowing this to be decided at the time of the enactment of the secondary legislation”.
The power should only be exercised “when a form of electronically executed will or fully electronic will, as the case may be, is available which provides sufficient protection for testators against the risks of fraud and undue influence”.
On formalities, the Law Commission proposed that a new power should be given to the courts to dispense with formalities for “records demonstrating testamentary intention”, including electronic documents as well as sound and video recordings.
Courts would be allowed to “determine conclusively” the date and place at which a record was made, apply the new dispensing power to records pre-dating its introduction and use the civil standard of proof.
“Any risks involved in removing the need for formalities to be complied with are mitigated by the fact that the operation of a dispensing power would be subject to judicial control.
“Indeed, an assessment of evidence to establish whether a document or record in fact represents the testator’s intention may be said to offer more protection than adherence to a particular form.”
The commission said the laws relating to digital assets fell outside the scope of its consultation and involved “legal issues of contract and intellectual property law”, rather than the Wills Act.
There was further disappointment for lawyers hoping that the Law Commission might tackle the thorny issue of making will-writing a reserved legal activity.
It said it understood that the government’s view on the subject had not changed since 2013, when it rejected a recommendation by the Legal Services Board to add will-writing to the list of reserved activities.
The consultation also proposes an overhaul of the rules protecting those making a will from being unduly influenced by another person, and providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
Law Commissioner Professor Nick Hopkins said: “Making a will and passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.
“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.
“That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”