Blog

04/01/19
The Law Commission launched a public consultation on reforming the law of Wills. The consultation period closed in November 2017 so what has been happening since then? It seems that unfortunately the timetable for this project has slipped back as the Government has asked the Commission to consider the law relating to how and where couples can be married and so this new weddings project has been given priority.

As for the Wills reform, the Law Commission has yet to complete the analysis of the responses to the consultation, then to formulate the policy and prepare a final report. Following that the Commission will instruct parliamentary counsel to draft a bill that would give effect to their recommendations. In short, nothing much will happen anytime soon. However, it may be useful to set out the current position as far as this topic is concerned.

In England and Wales, the formalities for making a valid Will are governed by section 9 of the Wills Act 1837. It is well known that for a Will to be valid it must be in writing, signed by the testator in the presence of two witnesses and signed by the witnesses themselves. In the consultation document the Law Commission clearly stated that they do not propose fundamental change in this area.

It is very clear from the legislation that a Will needs to be a paper document. Indeed, given that the law originates from 19th century it couldn’t be anything else. However, as mentioned above, the Law Commission has specifically considered how the ability to make a Will electronically could make it easier and indeed promote making Wills by individuals.

There is no doubt that if someone was simply able to make a “quick Will online" the process would be significantly simplified and obviously much cheaper. On the other hand of course, as with all things electronic, there is the potential risk of fraud and exploitation.

While electronic signatures are fully legal in the UK and becoming more accepted in commercial transactions, by definition in such transactions, given that two parties are involved, each party would be interested in ensuring the authenticity of the other party’s signature. The "ensuring of the authenticity of the signature" is in fact the key issue in this e-Wills dilemma. As the Law Commission has pointed out, in order to make electronic Wills a reality, it will first have to be determined what constitutes a secure form of electronic signature and there will have to be a suitable infrastructure to ensure that a durable record of an electronic Will remains available many years after the Will has been executed.

In order to strike a balance between enthusiasm for electronic Wills on the one hand and the need to work out the detail of how they could be securely introduced on the other, the Law Commission provisionally proposed the creation of a statutory power enabling the introduction of electronic Wills that provide sufficient protection for testators against the risk of fraud and undue influence.

Until the law is clarified in this area (which will require a separate piece of legislation) the Law Commission has confirmed that electronic signatures will not satisfy the current formalities for a valid Will.