Mary and Louise’s article was published in STEP Journal, Issue 6 (page 20), and can be found here.
Safeguarding the future: Electronic wills and safeguarding vulnerable individuals
Vulnerable clients are a key area of concern for solicitors. This particularly applies to the preparation of wills, where risk factors include age, disability, illness and cognitive impairment. The Law Commission of England and Wales has long argued that existing legislation – primarily the Wills Act 1837 – needs a comprehensive review.
In 2017, the Law Commission published a consultation, ‘Making a Will’, but this was subsequently paused while the Commission worked on a project on the law governing weddings which it reported on in 2022 and after which the wills project recommenced. In October 2023 a Supplementary Consultation was published, inviting views on two issues: electronic wills and the rule that a subsequent marriage or civil partnership revokes a will. The latter rule is topical because of the increase in predatory marriages: where a person marries someone, who may be elderly or lacking mental capacity, as a form of financial abuse.
In summary, the specific questions raised by the supplementary consultation are:
- Should provision be made for electronic wills to be valid under the law? If yes, how and when should the new legislation, introducing bespoke formality requirements, be implemented, and what should the formality requirements be?
- Should marriage or civil partnership automatically revoke a previous will?
The Supplementary Consultation paper defines an ‘electronic will’ as an ‘electronically executed will’ or a ‘fully electronic will’. An electronically executed will is ‘a will executed (or the formalities completed) using electronic means’. A fully electronic will is ‘an electronically executed will which is then stored and admitted to probate solely as an electronic document’.
The Law Commission expresses doubt as to whether electronic wills are currently capable of meeting the formality requirements in the Wills Act 1837, and seeks clarification, proposing that the Act should be amended to exclude the possibility of the current formality requirements in section 9 being interpreted to allow electronic wills to be valid. Instead, the Law Commission argues, bespoke requirements should be introduced allowing electronic wills to be valid. The formality requirements for an electronic will may be different to those required for a paper document, and may include additional formalities (such as registration) or requirements that take advantage of modern technology.
The Supplementary Consultation does not seek to determine what the new formalities should be. Instead, it focuses on what the formalities need to achieve, and considers when and how such bespoke requirements should be introduced (whether under a new Wills Act, with any detailed requirements set out in subsequent secondary legislation, or alternatively by the introduction of a new Wills Act containing an enabling power allowing electronic wills to be recognised as valid in the future, at a point when the specific requirements have been determined).
The experience of other jurisdictions which have permanently amended their laws to recognise electronic wills as formally valid is relatively limited. The Uniform Electronic Wills Act 2019 in the US provides model legislation for states to adopt, but has only been adopted to date by a handful of states. The Act still requires that electronic wills be in writing (not in audio or video form), signed, attested and witnessed either in person or virtually.
Notably, under Nevada legislation, an electronic will may, as an alternative to an electronic signature by a notary or two electronic signatures by witnesses, be authenticated by a method of authentication unique to the testator such as ‘a fingerprint, a retinal scan, voice recognition, facial recognition, video recording, a digitized signature or other commercially reasonable authentication using a unique characteristic of the person’.
Within the private client industry, opinion on the use of electronic wills is divided. Supporters point to technological and behavioural changes during the Covid-19 pandemic, which have led to electronic signatures becoming much more commonplace for other legal documents. For some, the argument centres on convenience, and on the inevitable march of digitalisation across all aspects of society: online banking replacing signed cheques is cited as an obvious example. As with other digital alternatives to signed paper documents, cost-saving, simplicity and efficiency are advantages which might be afforded by the adoption of electronic wills. Equally, they would be adaptable and convenient: in theory, the testator could more easily update or amend his will. All of these benefits could lead to an increased number of wills being proved, and a reduction in the number of intestacies.
However, reservations about electronic wills are numerous. Fraud and forgery are obvious concerns, especially for vulnerable testators. The use of electronic signing software is increasingly prevalent in commercial transactions, but it is not clear that this is appropriate for the signing of wills. Quite apart from the entirely different nature of a will as compared, for example, to a tenancy agreement, many testators are elderly, and reliant on assistance from family, friends or carers when using modern technology. The scope for abuse or fraud is self-evident.
The Law Commission suggests that fully electronic wills could be created using electronic signatures and stored electronically without any paper version. Although storage and security issues might be overcome by mandatory filing on the National Will Register, a number of questions remain, particularly with regard to any period during which a dual (paper and electronic) system was in effect.
The increasing prevalence of online will-writing services may foreshadow an enthusiastic adoption of electronic wills, if they were to become legally valid. Conversely, anecdotal evidence that the witnessing of wills using video-conferencing (which was introduced in 2020 in response to the Covid-19 pandemic) has seen relatively limited take-up may point the other way to an innate reluctance on the part of testators and advisers to embrace recent technology in the field of wills.
Having recognised the increase in predatory marriages – in part, as a result of effective campaigning by affected families – the Law Commission seeks to revisit the question of whether a new marriage or a civil partnership should revoke a will. The Supplementary Consultation paper suggests that abolishing the current rule (that a subsequent marriage or civil partnership automatically revokes a will) could be seen as rebalancing the interests of various potential beneficiaries.
Many otherwise sophisticated testators are unaware of the existing rule, and if a testator has made a well-thought-out will (which may include provision for charities or other beneficiaries), automatic revocation can have unintended detrimental effects.
Conversely, it can be argued that a marriage or civil partnership creates a new family unit, and that it is entirely appropriate that a surviving spouse should be provided for, whether by the operation of the intestacy rules (notwithstanding their limitations) or by the making of a new will, in either case consequent on the automatic revocation of the old will.
It is interesting to consider the law in Scotland, where marriage does not automatically revoke a will. Instead, legal rights allow a surviving spouse to claim a proportion of the deceased’s estate, regardless of the provisions of the will, and without the need for a court application. Legal rights are, however, limited in scope and only apply to the moveable estate: not to real property, which is arguably what will often be most needed to provide for the widow(er).
In considering the abolition of the rule, the Law Commission highlights the protection afforded by the Inheritance (Provision for Family and Dependants) Act 1975. It follows that the abolition of the rule may increase the number of family provision claims. The Supplementary Consultation paper speculates that any increase in such litigation may only be modest, since the mere possibility of a successful claim may operate to encourage settlements out of court. However, even the pre-action processes involved in such negotiations will inevitably be distressing to the parties.
The victim of a predatory marriage may lack testamentary capacity and the automatic revocation of a will on marriage may benefit the predator who will inherit on intestacy. Either way, it will often be the case that a sophisticated predator will have a sufficient understanding of the law to be able to circumnavigate any legal safeguards.
Neither the potential adoption of electronic wills nor the proposed abolition of the marriage revocation rule can be easily reduced to a simple binary choice. Caveats and concerns invariably apply in both cases. Manifestly, a balance needs to be struck between embracing technology and safeguarding against abuse. Crucially, this needs to be in conjunction with better public education to help individuals understand the importance of making a will, why formalities and safeguards are necessary, the legal implications of marriage and how to recognise the signs of vulnerability to predatory marriage. Professional advice will be more important than ever, to help clients (especially vulnerable clients) navigate the new framework.
What the Law Commission will ultimately choose to recommend following its consultation is hard to predict, particularly since there is a notable polarity of views on both issues. But protecting the interests of vulnerable individuals must remain the paramount concern in implementing changes to the status quo.