Digital doubts?

Given advances in technology and a younger generation that have grown up being able to manage their day-to-day lives at the click of a button, it’s not surprising that the Wills Act 1837 is currently under review for modernisation by the Law Commission. 

As a reminder, the main proposals of the Law Commission’s new bill on electronic wills are that:

• wills can be created, signed and then stored electronically 
• wills can be witnessed remotely via video methods – as was the case during the pandemic – with this becoming the norm
• the age to make a will is reduced from 18 to 16
• the importance of digital assets is more highly recognised, and
• the test for testamentary capacity is aligned with the Mental Capacity Act 2005 rather than with outdated case law (Banks v Goodfellow).

Many argue that the advantages of these potentially bold updates to the law are that they will make the drafting of wills simpler, quicker and more easily accessible – not just to the more technologically advanced but also to those who struggle to physically attend meetings elsewhere and prefer to conduct their affairs ‘out of office hours’ in order to have their will drafted. 

However, given that it may become possible for a will to be drafted and completed without a physical pen ever being put to paper, this raises concerns over the many risks associated with doing so – such as coercion, undue influence and the vulnerability of the client.

Risks

The risks of coercion and undue influence have, in their own right, always been huge considerations for the will drafter when taking instructions from their client. Albeit notoriously difficult arguments to prove in court (coercion and persuasion being two very different beasts), arguably, the new proposals may increase the risks being placed upon the client. Some crucial issues to consider include the following.

Validity

How can you check the testator is alone when making their will if everything is done over a screen, and the witnesses are not physically present at the time of signing? Is someone else sitting just off camera, exerting pressure on the testator?

Vulnerable clients

Are we able to guarantee proper safeguards to ensure vulnerable clients (whether elderly or suffering from physical or mental conditions that may affect capacity) are not at risk? Face-to-face meetings are often necessary to assess capacity and understanding, and this can sometimes take more than one meeting, particularly if the will becomes complex or requires more thoughtful drafting.  

Abuse of technology

Does a new electronic system lend itself to potential abuses in technology? Deep fakes, artificial intelligence-generated videos, images or audio, which can be used to realistically create a person doing something they didn’t do, could potentially be used to pass off instructions from the testator. 

Forgery

Could fraudulent forged electronic signatures be used if stringent tests are not put in place at the time of signing? Could a will be later accessed, corrupted or changed if stored electronically on an unsafe platform? Is there a risk of data loss or cyber-attacks aimed at those storing documents? 

Age of testamentary capacity

While the current law provides that those below the 18 in the armed forces on active duty can make a privileged will, the proposal is to lower the age of testamentary capacity to 16. But does a 16-year-old understand fully what they are intending to do and why they’re doing it? Given that many aspects of life require a legal age of 18 – owning property and getting married being two obvious examples – is there not a real risk of a will being accidentally revoked or becoming outdated?  

How to overcome these risks

Although we’re all aware of the importance of a good attendance note in will drafting, for digital wills, it will be more important than ever to ensure that such notes are thorough and cover all aspects of the will meetings. 

If using software to create a digital will, having markers or prompts at stages throughout the drafting process can ensure a client’s capacity and understanding, and that there’s no coercion or risk of vulnerability. Such prompts can check facial recognition and verification of identification, and also the client’s understanding, asking questions such as “who was present when you gave your instructions?” or “is this of your own free will?” 

The client can also be prompted to seek proper legal advice or confirmation of mental capacity from a qualified professional, particularly if the will becomes complex or if their wishes are unusual or out of the ordinary. 

In terms of document storage, similar facilities to those the Land Registry uses for storage of deeds would ensure wills are kept on a safe, secure and regulated platform. By using encryption and multi-factor authentication – and with proper processes in place to show access or attempts to amend or alter documents – such platforms would be secure, while still allowing hard copies to be downloaded and kept by the testator.

Traditional in-person methods for those without access to digital services must remain for years to come – any transition to electronic wills needs to be properly thought out, gradual and fully understood to be inclusive of all members of society.