The Evolution of Wills

A recent law commission consultation paper on wills detailed the potential for wills to become electronic. With the unfathomable developments in technology since the Wills Act 1837, it seems long overdue that this sort of proposal is being made and our outdated system is restructured to meet current digital capabilities. There is a reliance on technology in today’s day and age and the law needs to modernise in order to catch up with the current technology and the way in which people use and access documents and information. Society as a whole is only going to become more digital, so laws need to be prepared to adapt before they become irrelevant and extinct. Although an awful number of factors and variables would need to be considered in reforming the law to incorporate technology into wills, the law commission appear to have made a reasonable start, and we could certainly see a development in the law occurring in the not so distant future.

‘If it ain’t broke, don’t fix it’

Many traditionalists would likely argue that a reform of this nature on the law of wills would be far too extensive and require too much complicated work, which would outweigh the benefits of doing so. Strictly speaking no, the law is not incorrect nor unjust and has evidently worked effectively since 1837 when the Act was implemented, however, 40% of people die intestate and a case can be made that that is sometimes due to the complex, outdated rules governing wills, the formalities of such and their execution. There is a general trend across all of society to update and change the way in which services are provided to meet current technological capabilities, and wills should not be an exception.

Technology is already widely used at many stages of the will-making process, in preparation and drafting in particular, so it seems to only make sense to develop that further into execution, storage and administration, and incorporate that in our law. This would be advantageous in numerous ways; making the process more convenient, providing better security and it would be cost and time saving. More specifically, the law commission notes just how efficient it would be to create and execute a will digitally, have the ability to electronically check the will to ensure it meets formalities, and then store the will ready to be submitted for probate, all in one system.

Where to Draw the Line

Whilst this side of reform seems extremely viable and attractive as a way in which wills may be drafted and executed in the future, the consultation paper did raise proposals which are fairly disputable and something’s which would prove too problematic to be introduced. The idea of giving the court a dispensing power to say when presented to them whether a will that has not been properly executed could be valid, would likely be effective. On a case by case basis courts could assess wills based on other relevant factors to do with fact and context to enable a will to be regarded as valid, where before the complex and strict rules of formality and execution would regard the will as invalid.

However, the commission suggests that this could include ‘wills’ in the format of text messages, voicemail, audio and video recordings, and writings on tablets or typed word documents. In other jurisdictions these have been admitted often in cases where the testator was terminally ill or had committed suicide, however, this proposal would be under a lot of scrutiny. It could open a window for further family dispute over entitlement, with the courts becoming inundated by various pieces of digital evidence in different forms, to have to sift through and decipher the true intention of the deceased. It could also be open to abuse and victims could face undue influence, as who is to say it was the person who died who actually wrote and sent the text message and not somebody else who misappropriated their phone? These are all serious considerations which are understandably hindering this particular development of the law, however, the law commission accepts this and so it is unlikely that this aspect will be implemented any time soon, if at all.

From the work of the law commission but also common awareness of the digitally advancing society we live in, these proposals should be welcomed as feasible ways in which the law can be reformed to incorporate technology, which is more than advanced and capable, to facilitate how we draft and execute wills today.

Giles Wood – rhw solicitors llp (Work experience student. Article supervised by Edward Pennington, Head of Private Client Services)

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