What makes a valid Will? Should the current legal formalities, which originate from the legislation passed in 1837, be aligned with our changed 21st century lifestyles? The Law Commission has recently launched a consultation inviting both members of the public and professionals to share their experiences and comment on their proposed reforms in this area.
The Law Commission proposes to revolutionise the current legislation which governs the law of Wills. To many it makes sense that a text, an e-mail, or even an audio or video recording should be capable of relaying a testator's wishes with regards to their estate just as well as the generally accepted paper-based Will. An Electronic Will (or an E-Will) is arguably merely the next logical step.
The idea itself is far from new. The USA has struggled with the concept of E-Wills since at least 2004. The main obstacle seems to be the lack of the appropriate infrastructure which would ensure that the relevant legal formalities are complied with.
The Law Commission hopes that the current consultation will raise public awareness and interest in this area of law, whilst canvassing ideas to address the technological issues. The proposals include a relaxation of the legal formalities and the reduction of the minimum age to make a Will from 18 to 16. However, they do not address how the testator's last wishes could be protected from undue influence or fraud.
It is estimated that the current 40% of the adult population who do not have a Will may be encouraged to make one if E- Wills become accepted in England and Wales. It is hoped that this will be an end-to-end process which would allow an individual to create a Will from their electronic device, which would automatically ensure it is compliant with the formality rules, and register the Will with the probate service, ready to be extracted on death. Being electronic, it would also allow the testator to easily make any amendments in the future.
The Commission admits, however, that developing this area of law is not straightforward. The proposals analyse in detail the typed signatures and a variety of electronic signatures which are currently accepted for some commercial documents. The conclusion is that the requirement of a handwritten signature on a Will appears to be largely unchanged because it allows for a detailed forensic analysis to take place where there is a doubt to its authenticity. In contrast, the authenticity an E-Will which could be prepared in a public library or a University computer, or on a device that belongs to a friend, could be compromised as it will carry metadata of a third party, making it difficult to prove who is the author.
The Commission paper has not addressed how the testator's E-Will should be witnessed, despite reiterating the importance of witnesses as a measure in prevention of fraud and undue influence.
The proposals include the revived idea that courts should have dispensing power if E-Wills become commonplace in the future. However early commentators point out that while the court's involvement will be necessary where the testator's language is ambiguous, this may also open doors to increased litigation by disappointed beneficiaries.
There is clearly a lot of work to be done before E-Wills become an alternative to a paper based Will, but if you would like to engage in the discussion and participate in the Law Commission's consultation you can do so until 10 November 2017 via the Law Commission's website.