The Law Commission is carrying out a consultation into the potential for electronic Wills, and it seems like there is a real sense of momentum behind the idea.  Electronic Wills are Wills that will never exist on paper, but will be created, signed and stored electronically.  

This is getting with the times, and perhaps bringing the Will system more up-to-date.  But it does create a real sense of risk, and it is at the least questionable about whether the perceived benefits are worth it.

The starting position is the Wills Act 1837, yet another Victorian act that has stood the test of time.  That provides that for a Will to be valid it has to be in writing, signed by the testator (the person making the Will) in the presence of two other witnesses who each of them sign the Will. There are a few exceptions and variations to that, but broadly speaking, that is the way it is done.

The point of those requirements is to recognise that making a Will is usually regarded as a significant thing for a person to be doing, particularly in a jurisdiction like England and Wales where on the face of it there is freedom of testamentary disposition.  That is, you can leave what you want to who you want for whatever reason.  Once again, that theoretical freedom is hedged around with other rules, but it does make a difference in principle between our system, and the continental system of forced heirship, where family members are entitled to prescribed parts of the deceased's estate, and puts the focus squarely on the Will.  With it being so important, its creation requires a significant level of formality.

Doing all this electronically could (again, in theory) speed up the will making process, make it easier, reduce its cost and enable automation to flourish.  

What has been noticeable for the past couple of years is that cases relating to testamentary capacity or undue influence, both of which are challenges to a Will, or based around the circumstances of signing the Will,  seem to have become more prevalent.  There have been a number of high-profile cases about these issues, and that publicity seems to result in more such cases being brought.

What lots of these cases show is the variety of circumstances in which a Will may come to be executed, and the potential for considerable pressure to be put on a testator to make particular provisions in their Will, whether they really want to or not.  From that perspective, anything which makes a Will easier to draft and in particular execute creates the ground conditions for more problems with the Will, and more challenges as to whether it is, in fact, the genuine statement of the testator's wishes.

It also makes the Will more process-driven, and an area where increased automation could lead to a decrease in quality.  The reality is that for lots of Wills, they are now being marketed as low cost products (think of the adverts on the back of the bus offering a will for £99) when the assets being dealt with may have a very substantial value and be subject to complex arrangements.  That is unlikely to help the robustness of Wills, particular as the population ages, with the additional vulnerabilities that can bring.

So robot help in producing Wills may turn out to be a very good thing.  Or the step into the future could end up being a retrograde step.  The consultation closes on 8 December 2023 and there is bound to be further comment as the Law Commission digests the responses.