The Law Commission launched their Supplementary Consultation Paper on 5th October 2023, and the consultation period will run until 8th December 2023.
The Supplementary Consultation Paper is a re-consultation on two discrete issues: electronic wills and the rule that a marriage or civil partnership revokes an existing will.
Responses may be sent to them using the online response form.. Alternatively, comments may be sent:
- by email to firstname.lastname@example.org
- or by post to Wills Team, Law Commission, 1st Floor, 52 Queen Anne’s Gate, London, SW1H 9AG.
There has been an ongoing discussion around the law of wills and whether reform needs to be implemented. Ally Tow, Litigation Expert from Boyes Turner said that whilst she thinks that reform as regards to the law of wills is “probably long overdue”, Tow would be “slow to support” a fully digitalised process for the preparation and execution. She continued:
“I wholly support the way in which electronic signatures of documents became the ‘norm’ following the pandemic but in my view a will should not be treated as ‘just another document’. A will is and must remain an unique document. It is also a very important document setting out important wishes as to how the testator wishes his/her estate to be disposed of (as well as other matters, such as, for example funeral arrangements and guardianship of children) and of course is effective after the testator’s death and so at a time when he/she is no longer able to give any evidence as to their wishes in the event of a dispute.”
The last six years have seen increasing recognition of the use of digital documents and signatures in other contexts, as well as developments in technology. The COVID-19 pandemic has also taken place, during which technology facilitated will-making. Tow states that it would “potentially make it easier” for those members of the public who have access to electronic devices but this is “not the case for everyone”. She continued:
“I think a fully digitalised process could have an adverse effect on our elderly and more vulnerable people. How would they go about creating a valid will if the process becomes more digitalised? In addition, I think contrary to its intentions it could well lead to more concerns as regards the validity of a will after the testator’s death which in turn is likely to lead to more disputes. How are beneficiaries (or disappointed beneficiaries) able to know if the will has been validly executed? What is there to say that someone did not exercise undue influence on the testator to create the digitalised will? How would you know if the electronic signature is a genuine signature of the testator? And what if the will cannot be accessed by the time of the testator’s death? If we consider how technology has advanced over the years it would now be very difficult (if not impossible) to access a will which had been made probably just 20 years ago but was stored on a floppy disk?”
Tow emphasises the need for a balanced approach to reforming the law of wills. What’s more, she calls for a revision of the intestacy rules concerning the distribution of a deceased’s estate. Ally criticises the current rules as outdated and not reflective of modern family dynamics, especially in blended families. She points out that the current system often leads to unnecessary Inheritance Act claims, particularly involving children from a deceased’s former marriage or relationship, due to the disproportionate allocation of the estate to the current spouse.