Are electronic wills the future, or does going digital place some clients at greater risk of coercion and undue influence? Andy Hitchon, head of LEAP Estates, examines the main risks linked to digital will writing and what private client practitioners can do to overcome them.
Estate lawyers are well used to evolution. With legal technology advancing rapidly and many lawyers now comfortable managing their work through a screen, it is understandable that the Law Commission is reviewing the Wills Act 1837 to modernise the field.
Proposals ranging from electronic signatures to video witnessing aim to make will making more accessible, efficient and digital. For clients who struggle to attend appointments or prefer to handle matters outside standard working hours, this shift could remove longstanding barriers.
However, practitioners know that the safeguards around the will making process are as important as the document itself. Any change should strengthen, not weaken, the protection of vulnerable clients.
Digitising the will writing process
The Law Commission’s new bill proposes that wills can be created, signed and stored electronically, witnessed remotely through video systems, and that the age of testamentary capacity is reduced from 18 to 16. It also suggests aligning the test for testamentary capacity with the Mental Capacity Act 2005 instead of the older Banks v Goodfellow case law.
This will enable the statutory test to be based on up-to-date medical understandings and bring consistency to capacity assessments in this area of law. This is likely to make advice more consistent, as most medical practitioners are trained on the MCA and can therefore be sought for the delivery of capacity assessments.
Although many believe these updates will make will drafting simpler, quicker and more accessible, the shift to a fully digital process raises clear concerns. A will created without a physical pen ever touching paper presents risks of coercion, undue influence and increased vulnerability.
Electronic wills: progress or pitfall?
Coercion and undue influence have always been major considerations when taking instructions. These issues are difficult to prove in court, yet the proposals may heighten the risk. Without physical presence, how can lawyers be confident the testator is alone? Could someone off camera be exerting pressure?
Private client solicitors must be particularly vigilant. To verify that the testator is alone, additional checks will be necessary to mitigate the risk of coercion. This could be in the form of a full room scan, for instance, where the testator rotates their camera 360 degrees; but while this may be useful in some cases, it is still not entirely effective. Additional checks would also need to be put in place when the will is witnessed.
Abuse of technology
The potential abuse of technology also creates new challenges. Deepfakes and AI-generated audio could be used to imitate a testator’s instructions. Forged electronic signatures are another concern if strict verification is not implemented.
If wills are stored on unsafe platforms, such as on a person’s own desktop, personal Dropbox or an open network that could be hacked with ease, they may be accessed, corrupted or altered.
Cyberattacks and data loss also present significant threats. We are all aware that data leaks occur; notoriously, we often get pop-up notifications on mobile phones stating that sensitive information may have been subject to such a leak. When that is the case, we are compelled to update passwords.
Once accessed, wills could be altered or deleted, compromised email accounts could expose drafts, signed wills and information about a testator and those within the will itself. Ransomware could prevent access to documents, data corruption or loss. Seldom, testators might also be tricked into making a will on a phishing platform that would then result in data being unknowingly given.
As a result of lost data, some organisations have faced significant fines from the Information Commissioner’s Office.
Safeguarding all clients in the digital age
Vulnerable clients must remain front of mind. Those who are elderly or living with physical or mental conditions often require in-person meetings to assess capacity. Some wills need more than one meeting, particularly when instructions are complex.
Lowering the age of testamentary capacity to 16 also raises questions. With many legal rights still tied to the age of 18, there is a genuine risk of a will becoming outdated or accidentally revoked.
While technology will shape the future of will writing, the transition must be gradual and inclusive. Legal software can help by prompting checks on capacity and understanding, flagging unusual instructions and advising clients to seek professional confirmation when needed. Facial recognition, ID verification and clear audit trails, combined with secure document storage that uses encryption, multi-factor authentication and regulated platforms, will also reduce risk.
Secure, centralised legal software, such as LEAP for Estates, enables law firms to establish protocols that support fee-earners in their work, with integrated tools that reduce manual work to improve accuracy and speed up the progression of every matter. Complex tasks such as inheritance tax calculations are transformed into a smooth, structured workflow, as IHT positions, HMRC forms, schedules and STEP-compliant estate accounts are generated automatically from the data already recorded, reducing the risk of errors.
The future of will making
Modernisation is necessary, but progress must not outpace protection. Electronic wills may become part of everyday practice, but only if supported by rigorous processes, secure storage and the continued use of in person meetings where required. Digital options should enhance support for clients, not replace the careful, human centred judgement that sits at the heart of good estate planning.
About the author
Andy Hitchon qualified as a solicitor in 2009 and has significant experience across all aspects of wills, trusts and probate. A full member of STEP (Society of Trust and Estate Practitioners) since 2014, he holds the Diploma in Trusts & Estates (England & Wales). Before joining LEAP Legal Software as head of private client and LEAP Estates, he spent over a decade at Rothera Bray LLP, progressing to partner and acting as head of the private client department at Bray & Bray before its merger with Rothera.
