Where there’s a way, there’s a Will….
Rosamond McDowell discusses the Law Commission’s supplementary consultation on electronic Wills
In 2017, the Law Commission launched a consultation on reforming the law on Wills, thought to be arcane and unnecessarily complicated (as deriving from the Wills Act 1837 and case law). The consultation covered various areas, including how to make a Will that is formally and substantially valid, statutory and mutual Wills, ademption, donatio mortis causa, digital assets and international law aspects. The Commission also looked at ways to protect testators from undue influence, and enable younger people and people with diminishing capacity to make Wills. The clear objectives were the removal of barriers to making Wills, against a background where 40 per cent of adults had not made a Will; the prevention of fraud and undue influence, and the reduction of the incidence of post-death inheritance disputes. Another consideration was whether the rule that marriage revokes a Will should be abolished.
In the interim, of course, we have all had a pandemic to contend with. Most readers will recall that a temporary amendment to the Wills Act 1837 was introduced by parliamentary Statutory Instrument (SI) on 28 September 2020 (applicable retrospectively to 31 January 2020 and effective until 31 January 2022) under which the witnessing of Wills was permitted to take place ‘via videoconferencing or other visual transmission’. The SI itself was short and sweet. However, in July 2020 the Ministry of Justice had already issued guidance on the new rule, and the Society of Trust and Estate Practitioners (STEP) had issued a briefing note, with clear step-by-step guidance on how remote witnessing should be arranged. Notably, the government did not include electronic signing in the scope of the temporary reform, due to the risks of undue influence or fraud, and much of STEP’s note was aimed at ensuring that those making Wills under the remote witnessing rule should have as much protection from these risks as possible.
The electronic execution (as opposed to witnessing) of Wills was one of the areas that was examined by the Law Commission in their 2017 consultation paper (in Chapter 6). STEP had advised against introducing this, due to the potential scope for abuse. The original consultation document itself acknowledged that no other major jurisdiction had at that time successfully introduced electronic Wills. In the only jurisdiction (Nevada, USA) that had previously attempted to do so, the statute’s technological requirements were so onerous that no technology then available could meet the prescribed standards.
The supplementary consultation
The Law Commission Wills project was halted temporarily, because the government had other priorities. However, it has now been recommenced, and a supplementary consultation paper issued on two particular areas. The first of these is the thorny issue of electronic Wills, and the second is focused on the question of whether a marriage or civil partnership should result in the automatic revocation of a Will, with the increase in predatory marriages.
Looking at other jurisdictions, the Commission notes that a significant number, including many in the USA, Canada and Australia, have introduced permanent reforms permitting electronically executed or fully electronic Wills. While it is acknowledged in the paper that, as a result of covid-19 or otherwise, technologies have developed that simplify electronic execution of commercial agreements that have more than one party, the process of execution of Wills, with the protection from fraud or undue influence currently afforded by the requirement of two independent witnesses, is different. There is no technology yet available to mirror this requirement, and the process required under the 2020 SI was impossibly laborious.
Nevertheless, the Commission believes that the demand for electronic Wills and their potential benefits, as well as their appeal to a digital generation, is such that it would be a lost opportunity not to legislate to allow this and, hence, the invitation to interested parties to offer their views on whether and how such provision should be made.
As a practitioner with 25 years of experience, I can’t help but feel that the introduction of a mechanism for electronic Will signing will help to cut costs, simplify and de-mystify the process, as well as offer exciting possibilities such as a central register of Wills. On the other hand, I can see that ‘lifting the veil’ on the Victorian mysteries of the 1837 Act will need to be done with care, given the obvious attendant risks of negligence or fraud.
Rosamond McDowell is a partner at Payne Hicks Beach