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15th February 2024

Daniel Watson explores the digitisation of Wills in FTAdviser

Daniel Watson explores the digitisation of Wills in FTAdviser
Daniel Watson
Daniel Watson
Senior Associate

Daniel’s article was published in the FTAdviser, 15 February 2024, and can be seen here [subscription required].

‘Digitising wills could save millions’

At the end of 2023, the Ministry of Justice (MoJ) commenced a 10-week consultation to gather views on proposals to reduce costs and increase efficiency by only retaining digitised versions of original Wills. Under the proposals, paper Wills would be retained for a limited time before being destroyed.

Currently, all Wills submitted to the Probate Registry when applying for a Grant of Probate are preserved indefinitely in their original paper form (at an annual cost to the taxpayer of £4.5 million).

In addition to the proposals on the storage of Wills, the government is also seeking views on whether the current law permitting the public inspection of Wills should be preserved or reformed. The consultation proposals provoked a surprisingly fierce backlash from some quarters, and have already attracted a petition on the UK Parliament website to stop the proposed digitisation of all Wills.

On the face of it, the government’s proposal to digitise its collection of more than 100 million Wills seems sensible, given the technology now available to do so and the cost reduction resulting from no longer having to store millions of paper Wills in warehouses.

As well as costs savings, digitisation would also make it much simpler (in theory) for members of the public to access any Wills they seek to retrieve and examine (assuming that the technology works correctly).

The proposed changes to the current Wills storage system would see physical documents retained for a period of 25 years in recognition of their sentimental value, after which period the records would be held only in digital form (and the paper originals destroyed).

Some historians disparaged the planned digitisation drive, calling the destruction of physical Wills ‘sheer vandalism’ and ‘obviously insane’.

However, the plans are, in essence, merely a shift from one form of physical storage to another.

Exceptional cases

The government is open to developing an exception to digitisation in cases where there is a national interest in preserving permanently an original will in paper form for posterity or future historical or academic enquiry (essentially, for famous individuals).

A further consultation may be held in the future on what would constitute the qualifying criteria for such an exception.

Attention was focused on the MoJ’s proposal to make exceptions to digitisation in the case of ‘Wills belong[ing] to notable individuals or [that] have significant historical interest’.

The MoJ noted that the Wills of Charles Darwin, Charles Dickens and Diana, Princess of Wales will continue to be held at its facility in Birmingham, suggesting that the Wills of similarly important cultural figures would also meet the threshold for retention in physical form.

There are obvious problems with the government deciding whose Wills should and should not be preserved by virtue of being important to the nation; not least because, for those who achieve renown long after their death, their Wills are likely to be destroyed long before their latter-day fame should have resulted in their will being preserved in paper form.

Over-cautious opponents?

As to the issue of digitisation itself, opponents to the MoJ’s plans are arguably being over-cautious in wanting to preserve paper Wills, given the rapid changes and advances in technology in all other areas of daily life.

There has been a mass shift towards digitisation for years, with fewer and fewer people retaining paper bank statements, hospital records or other official documents when the information is available far more quickly and easily online.

It should also be recalled that where, for example, a Will is stored (only) in digital format and that document is lost for whatever reason, it might be possible for a solicitor who prepared the Will to provide an affidavit to confirm that a copy of the Will (assuming another copy exists somewhere) is a true copy of the original – although it is accepted that this might not be feasible in all circumstances, particularly when a long period of time has elapsed and the solicitor who prepared the will is retired or deceased.

It is arguable that some of the points raised against digitisation of Wills rely on relatively weak technological understanding.

The assertion that the long-term retention of Wills could be compromised by the periodic changes to digital file formats is an issue largely belonging to the digital past, now that conversion of files from one type to another can be so swift and simple to achieve.

Equally, warnings about the potential decay of digital archives are also less relevant today than they may have been a decade or two ago, as rapid improvements in protecting and storing digital data reduce the risk of decay and may in fact strengthen the argument for a move from physical to digital.

At the time of the then government’s decision to begin retaining paper Wills in 1858, there was no other option than to store Wills in paper form; now that technology has provided a cheaper and more efficient way to retain them, times should arguably move on.

If it works well, digitisation of Wills could increase public access and save taxpayers a not insignificant amount of money over time.

Wills are undoubtedly important historical documents with sentimental value. However, on a purely practical basis, so long as the retention of Wills in digital form is carried out with sufficient technological safeguards (and suitable backup facilities in case any part of the storage system were to fail), then there is arguably no practical reason to retain Wills going forward.

The argument between total digitisation vs paper records/a combination of both is one that applies to many spheres. It is an argument that cannot yet be satisfactorily settled, so long as there is any risk of digitisation of documents being corrupted or lost permanently.

It should also be remembered that, while there are unarguably potential issues with retaining documents only in digital form (namely security and reliability), the storage of paper Wills is not without problems. Fire, theft and flood are all significant risks, and paper storage is therefore arguably no more secure than digitised records.

Security and digital integrity should of course be key concerns for the digitisation of Wills, and suitable backups or safeguards should be in place. If the system works well, the £4.5 million annual savings could be money well saved.