Is the future of wills digital?
At the present time, the requirements for wills to be declared valid are set out in the Wills Act 1837, which came in to force just over 20 years after the Napoleonic Wars ended and the same year that Queen Victoria ascended to her throne.
Under the current law, in order for wills to be valid:
- They must be in writing;
- They need to signed by the will-maker with the intention of giving effect to their will;
- The signature must be made or acknowledged by the will-maker in the presence of two or more witnesses who are present at the same time;
- Each witness must also sign or attest the will in the presence of the will-maker.
Witnesses cannot be someone who is going to benefit from the will (or the spouse or civil partner of someone who’s going to benefit), otherwise any gift to that witness or their spouse or civil partner will be treated as if it weren’t in the will, i.e. they won’t receive whatever has been left to them.
When we prepare wills in the Private Client team, we make sure that all the formalities are correct so that it is valid, and we also consider whether the will-maker:
- Has the necessary mental and testamentary capacity to make the will;
- Knows and approves its contents;
- Made it freely and not as a result of being unduly influenced by others
Skype and Facetime
While we still have face-to-face meetings with clients, technology has moved on in the nearly 200 years since the act came into force and we now regularly meet with clients using Skype and Facetime, and supervise will signings in the same way. Obviously, rather a lot has changed since the law originally came into force and the Law Commission feels that it may be time for the legislation to catch up with modern technology, so it is holding a consultation, which runs until 10 November 2017. It includes proposals such as:
- Enabling the court to dispense with the requirements for a will where it’s clear what the deceased wanted;
- Changing the test for capacity to make a will to take into account the modern understanding of conditions like dementia;
- Provide statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will;
- New rules protecting those making a will from being unduly influenced by another person;
- Lowering the age at which a will can be made from 18 to 16.
These changes are aimed at reflecting the realities of modern life and the Law Commission consultation document comments: “A person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.”
That is undoubtedly true. The difficulty is that ‘wet signatures’ and eye witnesses who will not benefit from the will are still the simplest (if not infallible) protection against fraud. There is a high likelihood of fraudulent use of electronic signatures and sophisticated editing of digital records and a tidal wave of disputes involving wills – which will then require the additional input of technology experts to consider the data behind the evidence – seems inevitable.
However, we should not make it difficult for the ill or the vulnerable to express their wishes for what happens to their estate after they die. With less than half of the population having a will in place, there are often difficulties, as the consequences of dying without one can be severe. Anything the Law Commission can do to make it easier for us all to record exactly what we want to happen is to be welcomed – even if it does give rise to some difficult questions.
Posted on Jul 20th, 2017 by Lyons Davidson