A new Wills Act could permit electronic wills to be introduced “immediately”, rather than enabling the Lord Chancellor to introduce them by statutory instrument at some point in the future, the Law Commission has said.
Launching a supplementary consultation on the issue six years after its original proposals, the commission said technological advances and the experience of the pandemic “made electronic wills more feasible” and consultees’ views may have changed as a result.
During the pandemic, several countries, including the UK, allowed paper wills to be witnessed virtually. “Since then, some countries have introduced permanent reforms to enable electronic wills,” it said.
“The commission is seeking views on whether a new Wills Act should permit electronic wills, either immediately or by allowing for them to be introduced later. Any provision for electronic wills would need to ensure that they are as secure as paper wills.”
In its original consultation on reforms to wills in 2017, the Law Commission proposed that the Lord Chancellor be given the power to introduce electronic wills by statutory instrument.
Today’s consultation said that, just as paper wills have their own “bespoke requirements to be accepted as valid”, set out in the Wills Act 1837, bespoke requirements would be “key to allowing electronic wills to be valid”.
The question was “how and when” the requirements for electronic wills should be introduced.
“Should a new Wills Act provide that electronic wills are valid, with any detailed requirements (including any technological specifications) set out in separate secondary legislation?
“Or should a new Wills Act do no more than contain an enabling power, which could allow electronic wills to be recognised as valid in the future? In other words, should electronic wills be enabled on the face of a new Act, or should government be given power to enable them at some point in the future?”
The commission said it continued to think that the Act should be amended to “exclude the possibility of electronic wills fulfilling the current formality requirements that were devised with paper documents in mind”.
This was necessary to “exclude the possibility of the most basic, and easily amended – and forged – types of electronic documents and electronic signatures from satisfying the formality requirements for a valid will”.
The other issue raised in the supplementary consultation related to ‘predatory marriages’, where a person marries someone “often who is elderly or who lacks mental capacity, as a form of financial abuse”.
Marriage or civil partnership revoked a person’s will, allowing their spouse or civil partner to inherit most if not all their estate in the absence of a new will.
The 2017 consultation did not cover this issues but, given increasing concerns about predatory marriages, the commission intended to “gather evidence of its prevalence, and re-engage with consultees on the question whether marriage and civil partnership should revoke a will”.
Professor Nicholas Hopkins, Law Commissioner for property, family and trust law, commented: “Our review of wills aims to ensure that the law is modern and as straightforward as possible, protecting the most vulnerable and giving greater effect to everyone’s last wishes.”
The Law Commission paused the original project in 2019 after agreeing to the government’s request to prioritise work on the law around weddings instead.