In 1837 the Wills Act was passed which still to this day governs the basic legal principles relating to Wills. Now, almost 200 years later the Law Commission have launched a nationwide consultation proposing to shake up the law relating to Wills to bring it up to date and in line with modern day society.
One of the areas for discussion is whether there is scope in the future for there to be digital Wills. In the ever increasing digital world in which we live it seems logical for there to be the option to prepare your Will online. However, to do so would be to depart from the law as it currently stands. S.9 Wills Act states that for there to be a valid Will it must:
- Be in writing
- Be signed by the person making the Will (or by some other person in their presence at their direction) in the presence of two witnesses who also need to sign the Will
- That by signing the Will that it is clear the person making the Will intends to make a Will
Whilst a digital Will would satisfy parts of this test in that it would be in writing and there may be a clear intention that the individual intends to make a Will under the current legislation, a digital Will would not be valid as it would not have been technically signed by the person making the Will.
The Law Commission in their proposal suggest as many as 40% of adults do not have a Will and that by having legislation in place which would allow digital Wills to be valid would make the Will making process more accessible for some, therefore more individuals would make Wills. However, one of the major criticisms of the digital Will proposal is the risk of fraud and identity theft and how it would be possible to evidence that the person who is named as the testator in the Will is the person actually making the Will. Furthermore, practical issues arise such as how it would be possible for a digital Will to be located if there is no paper copy amongst the deceased’s personal papers.
The Law Commission themselves admit that at present the technology is not yet in place to protect consumers against identity theft in connection with making of digital Wills but that there may be scope for there to be in the future with technological advances.
However, the UK is a little bit behind in the times in terms of its approach as to what constitutes a valid Will. Some may say controversially, but just last month a court in Australia found that a draft text message found on a phone constituted as a legally binding Will and this was after a 2013 Judgement which ruled that a DVD marked ‘my Will’ was also a valid Will.
While it is clear that there is scope for the Wills Act 1837 to be amended to take into consideration the technology which is now available, any changes should be cautiously made to ensure there is adequate protection in place for the public. However, from a professional perspective my primary concern with any proposal relating to digital Wills is whether those individuals would be getting proper advice relating to the drafting of such a Will; inheritance tax advice or lifetime tax planning.
For example, the government’s introduction of the Residency Nil Rate Band in April 2017 has left many an experienced Will drafter scratching their heads as to how the legislation will work practically – and the risks for an individual who does not receive advice as to how this legislation works could mean in certain circumstances that their estate is charged additional inheritance tax which may have otherwise been avoided.