Responses to the Law Commission’s Supplementary Consultation Paper

The Law Commission launched their Supplementary Consultation Paper on 5th October 2023, and the consultation period ran until 8th December 2023.

The Commission is now consulting on possible reforms to enable electronic wills and to the rule that a marriage or civil partnership revokes a will.

The Society of Will Writers (SWW) have responded to the Law Commission’s consultation on electronic wills, acknowledging the growing use and development of technology in the will-writing process. They state that the “rapid advancement of both the development and use of technology supporting the will writing process could without doubt enable electronic wills to be valid under the law.” However, the SWW emphasises that while enabling electronic wills might be beneficial in principle, it could be problematic in practice. The risks highlighted in the 2017 consultation responses, such as concerns over coercion, fraud, or lack of capacity, remain significant issues.

They note a demand among their members for technology and software solutions to service clients electronically, accelerated by pandemic restrictions and a desire to modernise. Yet, there is no overwhelming demand for electronic wills among SWW members currently.

What’s more, the SWW recognises the potential benefits of electronic wills, like serving clients remotely and modernising the will-making process. They mention that “electronic signatures are already commonly used across other disciplines, and even in other parts of the will writing process.” However, they raise concerns about security, particularly with e-signatures, which could be susceptible to fraud. The SWW suggests that while electronic wills could increase accessibility, especially for those with disabilities or vulnerabilities, careful consideration is needed for the formal requirements and validity checks. They stress the need for maintaining high-quality advice and services, whether provided electronically or traditionally.

More on electronic wills, STEP states that as use of technology in all aspects of life increases, “so will demand for electronic wills”. STEP continued:

“New legal provisions will be needed to accommodate this. If electronic wills are introduced, safeguards against fraud and the abuse of vulnerable people must be prioritised.

We believe that provisions for electronic wills should be clearly set out in separate legislation, rather than incorporated into the existing Wills Act. This will avoid confusion and make it clear that the process for making a paper will is not affected.

To protect against fraud and the loss of will copies, we believe that electronic wills should only be valid if they are registered and stored on a government-authorised central storage system.”

Sarah Williams Vice Chair IPW said that whilst they appreciate developments in technology and the convenience it brings, the IPW “strongly believe” that the creation of a will is one of the “most important documents an individual can create”. She continued:

“The creating and signing of Wills electronically could in our opinion downplay the importance of such planning. The current requirements of being in writing and witnessed reiterate to the Testator the complex nature and legalities surrounding such preparation.

We also have concerns that electronic Will creation will only lead to further  fraud, undue influence and abuse of elderly and vulnerable people. We already see with many online will writing providers that liability is limited or indeed excluded and that capacity assessments are not conducted. Our concern with electronic Wills is that the consumer believes they are getting a fully protected service when in reality the small print says otherwise.

The useability of such Wills will only be tested at point of need and any defects will only come to light when it is too late. If electronic wills are introduced, new and vigorous safeguards against fraud and abuse must be implemented.”

Trevor Worth MBA TEP, Founder and CEO of Portcullis Legals said:

“Whilst most forward thinking legal practitioners embrace digital and the obvious benefits it can bring, and at Portcullis we are certainly ahead of the curve, I am still personally concerned about the threat of fraud and mal intent. The opportunity for individuals to apply pressure upon vulnerable relatives will increase as a result of the rush towards digitisation. I would urge fellow practitioners to reconsider how this can be dealt with first before blindly accepting any proposals. Protection of the client and their genuine wishes are of paramount importance.”

On predatory marriage, Sarah Williams Vice Chair IPW, said that without published figures on the prevalence of predatory marriage, it is “unclear how common predatory marriage is”. She continued:

“However the IPW supports and encourages the requirement for a capacity assessment in cases where an elderly, or vulnerable person intends to marry. We view this requirement as essential bearing in mind the effect of a marriage on any pre-existing Will. If an elderly or vulnerable client was updating a will a capacity assessment would be recommended, we see no difference on this basis that capacity should be similarly assessed for marriage.”

On the same note, STEP also stated that it is not clear how common it is. STEP said:

“A recent poll of a small number of STEP members found that 18% of respondents had noticed an increase. We support strengthening the measures for testing the capacity of people getting married or entering into a civil partnership. However, it also important not to assume that there is a predatory, or other ulterior motive, if someone who has reduced capacity gets married.”

The consultation also mentioned possible reforms to the rule that a marriage or civil partnership revokes a will. The IPW believes the current rules surrounding marriage and will revocation should remain unchanged, however more awareness “needs to be provided to those intending to marry”. The issue they believe is the general lack of awareness of the effect of marriage on wills.

STEP believes the current rule that marriage automatically revokes a will should be retained, but that there is a “need to raise public awareness of this rule”. They said:

“Greater awareness could prevent potential inheritance disputes, which cause distress for grieving families. We would like to work with government and other stakeholders to achieve this.”

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