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Electronic Wills and Reform- A Digital Future?

February 28th, 2018

With over 40% of people in England and Wales dying intestate, the question of how to overcome this problem has come into focus. Cue the Law Commission, which has proposed bringing wills into the digital age.

The statutory law underpinning the creation of wills dates to back to the Victorian era- 1837 to be exact- which has led the Law Commissioner Professor Nick Hopkins to comment that “…the law is unclear, outdated and could even be putting people off altogether.”

Although there is not yet any established precedent anywhere in the world for Electronic Wills, it is being considered by the Law Commission as a crucial step in making wills more accessible, convenient and relevant to a modern day population. With all of us spending more time on our electronic devices and deprived of time to visit local solicitors to create wills, the introduction of Electronic Wills could just be the golden goose that reduces the current number of those dying intestate by a considerable amount.

Or (excuse the pun) will it? Aside from the perpetual problem of people not wanting to confront their mortality by drawing up a will in the first place (possible unlikely to change whether a will is on paper or a computer), concerns abound as to how Electronic Wills can be brought into practice. As archaic as it may seem, one explanation as to why the current law has survived for so long is that it fundamentally works. At the forefront is the need to ensure that if Electronic Wills become a reality, they operate as freely from the dangers of fraud and security as the current system. In the fast-moving world of technology, this presents a never-ending battle and deep thought will be required as to how to address this fundamental conundrum.

In addition, the introduction into law of the General Data Protection Regulation- “GDPR” for short- this coming May represents a sea change in the field of data protection. The GDPR poses a significant challenge in how law firms administer and hold data going forward, and in the context of wills, ascertaining how Electronic Wills are to be securely executed, held and destroyed by legal practices.

Further law reform proposed by the Law Commission includes:

  • Lowering the minimum age of testators from 18 to 16;
  • Applying the test of capacity in the Mental Capacity Act 2005 to wills
    • Stage 1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
    • Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
  • Giving the courts a dispensing/enabling power to treat a document as a will in certain circumstances where the formalities are not followed.

Given the issues identified above, the current law governing wills is likely to remain in place for now. However, change is definitely coming and whilst new ground in this area is being broken slowly, the long-standing Victorian era law is bound to be superseded by the new digital age sooner than later.

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