Where there’s a way, there’s a Will….

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. 

Background

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.