By Amanda Steele, Solicitor, Wills & Probate
Will laws today
The laws on writing and executing wills are based on the Wills Act 1837 – laws that were written long before personal computers, memory sticks, tablets, smart phones and the cloud were invented.
To be valid, a will must comply with certain fundamental legal requirements, and these are set out in section 9 of the Wills Act. The will must be in writing and it must be signed by the person making the will. The will maker’s signature must be witnessed by two people, who then also sign in the presence of the will maker and of each other.
If the will does not comply with these basic rules, it is not valid.
Updating the law on wills: Is new technology the answer?
In 2017, the Law Commission issued a public consultation on the subject of bringing the law around wills up to date. One of the reasons for doing this is because a large proportion of the population of England and Wales die without making a will. People need to be encouraged to make a will, and review it regularly over the years, as their family and financial circumstances change. The Law commission invited views on how making a will can be made simpler and thereby encourage more people to make one.
You would think new technology would make things easier – but, as we know, technology changes at an exponential rate. Who can say what technology we will be using in the next 10 years, never mind 40, 50 or 60 years into the future. In the 1990s, who would have thought that today we would no longer be able to play the treasured VHS tape or download the files from the floppy disk? Unless people meticulously copy info, documents or recordings on to the new format each time technology steps forward, how can we be sure that the information can be accessed?
“Video wills” have certainly made their appearances on TV and in films, even if one would not be recognised in the real world. With visual effects made possible by technological advances, for example, those which can resurrect an actor who died midway through filming, it is certainly not beyond the bounds of possibility that a recording of a Testator stating their wishes by way of a “video will” could be manipulated or even completely fabricated to serve the purposes of a family member, friend or even a complete stranger. Additionally, there may be problems in revoking a digital document in an age where nothing is ever really deleted.
It is also important to remember that at this point in time there is still no secure way to digitally sign documents, either for the person making the will or their witnesses. Online identity verification has also got some way to go before being easy to use or fit for purpose. If secure and reliable systems could be devised, we still have issues such as fraud, duress and undue influence to overcome – all significantly easier to perpetrate online compared to a face-to-face meeting between the will maker and witnesses.
With the many issues that digital technology seems to create, rather than solve, it leads me to conclude that there really is no substitute for a hard copy of a paper will signed by the person making the will in the presence of two witnesses – just as section 9 of The Wills Act proscribed 181 years ago. Seeking face-to-face advice from an experienced professional can’t be dismissed as the best way to ensure a will accurately reflects the will maker’s wishes, that they have the requisite capacity to make the will, and that it was made free from duress.
For expert advice on writing your will and planning for later life, contact a member of the Wills, Trusts and Probate team. Please call 0800 138 0458 or send us a message using the contact form below and we will get back to you.