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Electronic Wills update

View profile for Ranulf Gull
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On 5 October 2023, the Law Commission published an update on its wills project in the form of a supplementary consultation to its initial consultation (which was published as far back as 2017), this time with a particular focus on electronic wills.

Given the law for making a will is from 1837 (and its substance has in the main been left unamended/repealed), it is no surprise that the legislation does not consider the possibility of one made electronically. The Law Commission feels that the time is now right for this to be reviewed in light of modern pressure for our lives to be managed digitally, the emergence of the Covid-19 pandemic, and a growth in “predatory marriage” cases.

What is an Electronic Will?

The concept of an electronic will is wide-reaching. The Law Commission’s view is that it includes wills using technology in any way from the preparation and drafting of the will, to the execution of the will, the storage of the will, or its admission to probate. Further, the Law Commission in its report has even considered the possibility of a will being made by a video recording of a person’s wishes. Such a will instrument would currently be deemed invalid, owing to the strict formalities required for a valid will to be admitted for probate.

Can You Make a Will Electronically?

The Law Commission believes that although the law does not currently prohibit an electronic will, such a will would nevertheless be unlikely to be accepted on the basis that it would not be properly signed by a testator and witnesses if these signatures were electronic. There is, however, uncertainty here so the Law Commission has recommended that clarity be brought to the area.

The Law Commission thinks it would be a lost opportunity not to make a provision for electronic wills, but it remains to be seen whether they will recommend such a provision be made. They are considering how an electronic signature might be able to provide the necessary security (in particular, how it can be proved that an electronic signature was signed by the real testator), but they are keen to steer away from recommending a particular method of electronic signature so as not to stifle technological progress in this area.

Can you Make a Will as a Video?

Over the pandemic we saw video-conferences used to allow for witnessing of wills to take place remotely, but in strict and controlled circumstances (made available by an emergency and temporary amendment to the legislation). The Law Commission considered taking this one step further in their original consultation in 2017 by raising the question of whether a will ought to be able to be made purely in video form, with the testator speaking their wishes to a camera.

However, that received mixed responses in 2017. Further, the Law Commission stated in their newest publication that electronic wills need to be subject to their own specific requirements on storage and execution. Therefore, they concluded that video wills should not be implemented as this would be too challenging.  As such, it appears that the possibility of video wills is highly unlikely.

What Should I do if I Want to Make a Will?

It seems we will have to wait and see to find out what conclusion the Law Commission will come to. Feedback has been mixed, but the Law Commission certainly considers them a possibility.

Regardless of their final decision on this matter, at present it does not seem wise to make a will completely electronically given the uncertainty. Wills are extremely important, and you definitely want to feel confident about yours. If you are thinking about making a will then get in touch with our Private Client team who would be capable and more than happy to assist you.

If you currently have concerns that a will may not be valid, owing to its failure to comply with the necessary formalities or otherwise, our Private Wealth Disputes team would be able to help you.