Authors
Authors
The law governing Wills in England and Wales has remained largely unchanged for almost 200 years. As technology continues to evolve, and electronic documents become the norm, the question of whether it is time for the law to recognise electronic Wills becomes increasingly relevant.
In its report Modernising Wills, published on 16 May, the Law Commission makes several significant proposals on this issue. This article examines the current legal framework, the case for reform, and the Commission’s recent recommendations on electronic Wills.
Current position
The legal requirements for a valid Will in England and Wales are set out in section 9 of the Wills Act 1837. For a Will to be valid, the following criteria must be met:
- it must be in writing;
- it must be signed by the person making the Will (the testator);
- the testator must intend for the document to take effect as their Will; and
- the signature must be witnessed by two people.
Between 31 January 2020 and 31 January 2024, temporary changes to the legislation allowed Wills to be witnessed remotely using video communication technology. This change was introduced in response to the challenges posed by the COVID-19 pandemic but has now expired.
The case for electronic Wills
It is uncertain whether a Will created in electronic form would meet the legal requirements of section 9. In particular, it is unclear whether an electronic signature would be sufficient, and there does not appear to be any case law on this point.
As electronic documents become increasingly widespread, the question arises as to whether Wills should also be allowed in digital form. Wills are distinct legal documents. Unlike commercial agreements, they are made unilaterally by the individual and are regularly made without professional involvement or any other party, other than the witnesses. Crucially, any disputes or concerns about validity often only come to light after the person has died.
In its report, the Law Commission has noted that this context makes the regulation of electronic Wills more sensitive than that of other digital documents. The key challenge is to modernise the process without compromising the protection the current position offers.
The Law Commission’s Recommendations in Summary
The report makes several significant recommendations, which are summarised below:
- electronic Wills should be just as legally valid as paper Wills if they meet all necessary requirements;
- the same rules for changing, revoking, and reinstating Wills should apply to electronic Wills, including the ability to revoke a Will by destroying it;
- in order to be formally valid, electronic Wills should be required to comply with certain additional criteria as compared to paper Wills, including: ensuring that the testator and witnesses are properly linked to their signatures, the original Will is identifiable from copies of it, and the Will is safeguarded from tampering;
- the law should allow for witnessing to occur remotely for Wills; and
- the Secretary of State should have the authority to create detailed regulations on how electronic Wills meet these conditions, following consultation and subject to a formal process.
If enacted, these reforms would represent a profound shift in Will-making practice, allowing for Wills to be created, revoked, or amended entirely electronically and remotely. The report contends this would strengthen testamentary freedom by making the process more accessible and flexible.
The report raises significant questions about authenticity and immutability. Unlike paper Wills, where original documents are physically distinct, digital versions must rely on technology to reliably identify originals, prevent unauthorised changes or destruction, and ensure copies are clearly distinguishable from the original. The report recommends the ability to distinguish the original electronic Will from copies forms an express requirement, considering that technology such as blockchain or DLT systems would easily establish this requirement.
The report also acknowledges the potential for fraud linked to electronic signatures but stops short of mandating a particular type of e-signature. Instead, it proposes that the Government and regulator should define what this, as well as the technology considered above, would look like in practice. The success of this approach may ultimately determine public trust and the overall success of electronic Wills.
Conclusion
The Government is expected to respond to the report within the next 12 months, and it will be interesting to see whether they support the proposal for electronic Wills. In the meantime, if you are looking to make or update your Will, please contact a member of our Tax, Trusts & Succession Team who would be delighted to assist you.