The Law Commission considers electronic Wills and predatory marriages – does the law need to change?
During the Coronavirus pandemic and national lockdowns, complying with the legal requirements to validly execute a Will (in the presence of two independent witnesses) was problematic owing to social distancing and self-isolation measures. To address these issues, the Government amended the legislation on a temporary basis to permit virtual witnessing of Wills by video link.
The shortfalls that were highlighted by the pandemic, sparked a renewed interest in modernising the rules regarding electronic Wills, leading to the Law Commission’s 2023 Wills project.
The proposed changes and Law Commission conclusions to date
The Law Commission considered whether it should be made possible to make and sign a will electronically (by use of an electronic signature) and, whether such electronically signed wills could be stored electronically, as opposed to in hard copy.
The 2023 consultation noted that previously, the case for allowing electronic Wills was relatively novel however, particularly since the Coronavirus pandemic and other technological advances, the advantages may outweigh the drawbacks. There could be clear trails of testamentary changes and possible advantages in the Probate process.
Despite this, there remain a number of practical points that need consideration to ensure that the protections and formalities that paper Wills provide are replicated to protect potentially vulnerable people from fraud or undue influence.
Electronic storage also presents another practical issue, for example if someone makes a Will without the assistance of a legal professional, how would relevant people know of its existence and how may executors access the Will if on the Testator’s private computer?
Given such concerns, the Law Commission concluded that at present
“electronic wills should not be accepted as valid under section 9 of the Wills Act 1837”
and indeed have now reversed the ability to sign Wills remotely.
Revocation of Wills by marriage or civil partnership
As part of the project, the Law Commission also considered whether marriage or civil partnership should revoke an existing Will. This arose from increasing concerns regarding predatory marriages. A predatory marriage is one where a third party seeks to marry an elderly or vulnerable person in order to benefit from their estate.
As marriage or civil partnership automatically revokes a will, marriage can facilitate this form of exploitation. Where a Will is revoked, the testator’s estate will pass in accordance with intestacy rules which favours, in the first instance, a spouse.
The test for capacity to enter into a marriage is far lower than the test for capacity to make a new Will and it is possible that a victim of a predatory marriage can lack the ‘testamentary capacity’ required to make a Will.
Whilst it is clear that amendments to the current rules could reduce this kind of abuse, it must be weighed against the needs of genuine spouses or civil partners who would no longer be protected by the intestacy rules and would otherwise have to rely on a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision.
Conclusion
The adoption of electronic wills and the abolition of the revocation by marriage rule highlight a real need to strike a balance between embracing technology and safeguarding vulnerable people.
It seems that any major reform of the Wills Act 1897 is unlikely in the immediate future and therefore it is imperative to understand the importance of making a Will and the formalities and safeguards to make a Will valid.
If you need help making a Will, please contact our expert team on 01202 525333 or wills@ellisjones.co.uk
About the authors
Danielle-Elyse is a Solicitor within our Wills, Trusts & Probate department and is based in our Swanage office. Danielle-Elyse’s experience includes, advising on and drafting of Wills, Lasting Powers of Attorney, Court of Protection applications (Deputyship) and Estate Administration (where there is a Will and where there is no Will)
Carla is our Partner, Solicitor and Head of Wills, Trusts & Probate with vast experience across several areas within the department, a few examples include, advising HNW and UHNW clients in the UK and internationally in respect of their UK tax position and general estate planning, drafting complex Wills and providing Trust advice, including establishment, initial structuring, restructuring and winding up.
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