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5th October 2023

Law Commission consults on electronic Wills and the risks posed by predatory marriage

Law Commission consults on electronic Wills and the risks posed by predatory marriage
Louise Garrett
Louise Garrett

The Law Commission has launched a supplementary consultation seeking views on electronic Wills and the risks posed by predatory marriage.

The Commission states that, since the initial 2017 consultation:

“the last six years have seen increasing recognition of the use of digital documents and signatures in other contexts, as well as huge developments in technology. The COVID-19 pandemic has also taken place, during which technology facilitated will-making.”

As the law currently stands in England and Wales under Section 9 of the Wills Act 1837, to be legally valid a Will must be in writing and signed by the testator in the presence of two or more witnesses who are both over the age of 18. Both witnesses are required to have a clear view of the testator signing the Will and, in turn, the testator must have a clear view of them signing the Will.

In its consultation, the Commission asks whether electronic Wills should be legally valid and, if so, what the new requirements should be. This is topical as it is yet to be determined how many disputes concerning the validity of Wills arose out of the pandemic era, when it was difficult to comply with the current execution requirements.

The current formalities for signing a Will probably seem archaic to most people given the popularity of electronic signatures for deeds and contracts through DocuSign. But the requirement for two witnesses to be physically present adds a safeguard to the testator and lends gravity to one of the most important documents a person will ever sign in their life.

The general rule is that marriage automatically revokes a Will. But it is legally valid if it is made in expectation of marriage to a particular person and the intention is that the Will should not be revoked by that marriage. Given growing concerns around predatory marriage and vulnerable people, the Commission is seeking views on whether marriage or a civil partnership should continue to revoke a Will.

The Commission asks for responses to its consultation by 8 December 2023. It can then develop its findings into a report and instruct Parliamentary Counsel to draft a bill that would give effect to its recommendations.