The Law Commission has unveiled landmark proposals aimed at bringing Victorian-era wills law into the 21st century. With the Wills Act 1837 still governing testamentary matters, the Commission’s recommendations seek to modernize the process, making it more accessible, secure, and reflective of contemporary society.

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Why Reform Is Needed

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Wills are among the most important legal documents a person can create, yet the laws surrounding them remain largely unchanged since the 19th century. The Commission highlights several key reasons for reform:

• Outdated Formalities: The current law requires wills to be signed in ink and witnessed in person, which can be impractical in modern circumstances.

• Technological Advancements: Digital documents are now commonplace, yet wills remain strictly paper-based.

• Protecting Vulnerable Testators: The law needs to better safeguard individuals from undue influence and fraud.

 

Key Proposals

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1. Introduction of Electronic Wills

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One of the most significant recommendations is the legal recognition of electronic wills. The Commission acknowledges that digital documents are now widely used in legal and financial transactions, and wills should follow suit. However, safeguards must be in place to:

• Ensure authenticity and prevent tampering.

• Establish a reliable system to distinguish original electronic wills from copies.

• Maintain security against cyber threats.

 

2. Abolishing the Rule That Marriage Revokes a Will

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Currently, marriage automatically revokes a will, often leading to unintended consequences. The Commission proposes abolishing this rule to prevent cases where individuals unknowingly lose their testamentary wishes upon marriage.

 

3. Updating the Test for Testamentary Capacity

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The Commission recommends aligning the test for testamentary capacity with the Mental Capacity Act 2005, replacing the outdated Banks v Goodfellow test from 1870. This would provide clearer guidelines for assessing whether a person has the mental capacity to make a valid will.

 

4. Lowering the Minimum Age for Making a Will

 

Under current law, individuals must be 18 or older to make a will. The Commission suggests lowering this to 16, allowing younger individuals—especially those with significant assets or medical conditions—to plan their estates earlier.

 

Risks to Vulnerable Adults: Coercion and Fraud in Electronic Wills

 

While electronic wills offer convenience and accessibility, they also raise concerns about undue influence and coercion, particularly for vulnerable individuals. The Law Commission and legal experts have highlighted several risks:

 

1. Increased Risk of Undue Influence

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• Vulnerable adults—such as those with cognitive impairments or limited digital literacy—may be pressured into creating or altering an electronic will without proper safeguards.

• Unlike traditional wills, where solicitors can assess a testator’s capacity and independence, electronic wills may lack face-to-face verification, making it easier for coercion to go unnoticed.

 

2. Fraud and Tampering

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• Digital documents are easier to alter than physical wills, raising concerns about unauthorized changes.

• Without strict authentication measures, there is a risk that fraudulent wills could be created or manipulated without the testator’s knowledge.

 

3. Lack of Witness Oversight

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• Traditional wills require two witnesses to be physically present, ensuring the testator is acting freely.

• Electronic wills may rely on remote witnessing, which could make it harder to detect signs of coercion or undue influence.

 

4. Accessibility Challenges

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• Vulnerable individuals may struggle with digital platforms, making them more reliant on others to draft or execute their wills.

• This dependency increases the risk of exploitation, particularly in cases where caregivers or family members exert control over financial decisions.

 

Safeguarding Against Abuse

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To mitigate these risks, legal experts suggest:

• Mandatory identity verification for electronic wills.

• Strict encryption and audit trails to prevent tampering.

• Legal oversight to ensure vulnerable individuals receive independent advice before making a will.

 

The Law Society has emphasised the need for careful scrutiny before electronic wills become law, ensuring that protections are in place to prevent fraud and undue influence.

 

Global Adoption of Electronic Wills

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While the UK is still debating the introduction of electronic wills, several countries have already embraced digital estate planning:

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• Australia: New South Wales became the first Australian state to allow electronically signed and witnessed wills in 2020.

• United States: Some states, including Nevada and Indiana, explicitly allow electronic wills, while others—such as Florida and Arizona—have adopted the Uniform Electronic Wills Act.

• Canada: Certain provinces have introduced remote witnessing and digital signing for wills, particularly in response to the COVID-19 pandemic.

• European Nations: Countries like Switzerland and Estonia have explored digital solutions for estate planning, integrating electronic signatures and secure storage.

 

These developments highlight a global shift towards modernizing wills law, with many jurisdictions recognizing the need for secure, accessible, and technologically advanced estate planning solutions.

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The Law Commission’s proposals mark a significant shift in how wills are created and managed. By embracing electronic wills, updating capacity tests, and removing outdated rules, the reforms aim to make will-making more accessible, secure, and reflective of modern life. However, careful safeguards must be in place to protect vulnerable individuals from undue influence and fraud. If implemented, these changes could reshape estate planning for generations to come.