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The fundamental right of deciding what should happen to your assets after you have died, more commonly referred to as testamentary freedom, is not universal, as some may think.

In many jurisdictions the concept of forced heirship is central, requiring certain portions of your estate to pass to certain family members regardless of your wishes. England & Wales, on the other hand, has a strong legal history of upholding an individual’s ability to control the devolution of their estate. Supporting the exercise of this right to testamentary freedom, alongside protecting testators (including from undue influence and fraud), and increasing clarity and certainty in this area of the law, were the three stated aims of
the Law Commission’s recently published report on updating the law on wills - Wills-Report-Volume-I-Report-Final.pdf (the ‘Report’).

Over the course of a three article long end of summer series we will examine what we see as the more significant of the Report’s recommendations.

1) The formalities required to make a valid will are unique in English law. Electronic wills and children making wills, two of the Report’s proposals, would signify important changes to the existing formalities regime, and will act as the focus of this first article.

2) Recommendations relating to the capacity of testators when making a will and the undue influence that can be exerted on them forms the basis of the second piece.

3) Finally, to round off the series we tackle suggestions by the Law Commission to expand the Court’s powers, alongside a change in the rules concerning the revocation
of a will.

Electronic Wills

Current position

Perhaps the most widely discussed of the Report’s proposals is the introduction of electronic wills, influenced in part by the emergence of remote witnessing of wills as a necessity during the pandemic. The current formalities required for a will to be valid are found in s.9 of the Wills Act 1837. The will must be:

(i) in writing;

(ii) signed by the testator (or by another person in the testator’s presence and direction);

(iii) in the presence of two independent witnesses (who must attest and sign the will or acknowledge the testator’s signatures in the presence of the testator); and

(iv) it must appear that the testator intended by their signature to give effect to the will.

Recommendations

(1) Extra Formalities

The introduction of technology to the world of wills is not risk free. Extensive tools exist facilitating the alteration and destruction of electronic documentation with potentially little
to zero trace. This has led to the Law Commission’s recommendation that additional formalities should apply alongside the existing ones if a will is to be made electronically. Namely:

(i) the testator and witnesses are “linked” to their signatures at the time of signing;

(ii) the original / authentic will is identifiable from copies of it; and

(iii) the original / authentic will is protected from unauthorised alteration / destruction.

The Law Commission has left open the question of how exactly the above would be given effect. It has stated that legislation would not stipulate a particular form of technology; instead, any technology that satisfied the requirements would be acceptable.

The first requirement, linking the parties to their signatures at the time of signing, would usually involve verifying the signatory’s identity at the time of signing. For the second and

third requirements, the Law Commission envisages various approaches, including a ‘blockchain or DLT system’ or storing the document with a law firm’s ‘version control’ software. Crucially, storage on an individual’s home computer or personal cloud account would be insufficient.

(2) Witnesses

The Law Commission considers that remote witnessing is necessary for electronic wills to become a viable alternative to paper wills and thus recommends its introduction. Interestingly, they decline to comment on whether remote witnessing should simultaneously be introduced for paper wills, stating merely that this was outside the scope of their consultation.

(3) Validity of different wills

Subject to compliance with the extra formalities, the Law Commission recommends that electronic wills should become formally valid on an equal basis to paper wills. This would allow electronic wills and paper wills to alter, revive and revoke each other.

(4) Regulation making power

In an effort to combat the reality of constantly evolving technology, the Law Commission proposes to grant a power to the Secretary of State to make new regulations which would allow them to detail exactly how the formalities of electronic wills would be satisfied. This power would be subject to the negative resolution procedure (i.e. the usual procedure
through which statutory instruments are scrutinised) and require the Secretary of State to consult such people he or she deems appropriate before exercising it.

(5) Alteration, revival, revocation and E-wills

Finally, the Law Commission recommends that existing rules on alteration, revival and revocation apply equally to electronic wills. In particular, they emphasise that electronic wills should be capable of revocation by destruction, giving the example of a document on a DTI system being sent to a ‘burn address’ from where it would be impossible to retrieve.

Children making wills

As it stands the age of testamentary capacity, i.e. the age at which one can make a will, is firmly set at 18, save for a minor carve-out allowing 16 - 18 year olds to make a will if they are a soldier on active duty or a sailor at sea[1]. In light of the ever-increasing rights of minors, and other jurisdictions such as Scotland allowing children from age 12 to make wills, the Law Commission has recommended that the age of testamentary capacity be brought down to 16, paired with a power for the Family Court to authorise testators younger than 16 to make a will on an application to the court.

These recommendations address the existence of children who have valid reasons to make testamentary arrangements. Children with health circumstances (e.g. terminal illness) often have to contemplate death at a young age and may wish to appoint an executor to carry out their funeral wishes. There are also those with significant assets, such as child actors, for whom the intestacy provisions (i.e. in most circumstances their estate going to their parents) might not match their wishes.

Stay tuned for next week, when we review the Law Commission’s recommendations regarding testamentary capacity and undue influence. In the meantime, please contact our private client team if you would like any advice regarding implementing your testamentary wishes or assistance with drafting your will.

[1] The Report has made further recommendations which deal with this separately but are not covered by this article.