We are awaiting the results of The Law Commission’s consultation on electronic wills.

The issues around this are complicated but for many lawyers dealing with private clients there is a real concern that long term and concerted efforts to democratise legal process will have a detrimental effect on the security and perception of wills amongst clients. Ultimately, that may leave the will-making process weaker rather than stronger.

One reason for this is the economic direction of travel.  Seeing a will advertised on the back of a bus for £99 makes it very clear that for a large part of the consumer market this is a commodified product already.  That will only advance with the ability to deliver wills electronically.  There will be many seeking to bring the cost-benefit of online scalability to this market, in the hope that they can make money even at low fixed prices.

So what?  Is that not simply the grumblings of someone in a firm where will and estate planning is for HNW clients who require bespoke advice that is priced accordingly?   Don’t reforms of this sort instead achieve greater protection for the majority, and surely having some inexpensive and easily obtained process around testamentary dispositions is better than nothing?  Perhaps, but the UK experience over the last 30 years is not one in which the population can have particular confidence that the market can deliver a fair and good quality product.  Instead, there are many examples that can be thought of where a liberalised approach has led to a race to the bottom.   Over this hangs the idea of the loss leader – the inexpensive will leading to the more lucrative probate.  That is perhaps something to be more concerned about.  

But that is taking a sceptical view of the market.  The changes do not themselves mean that there has to be a poor market response.  Instead, we could see a flourishing of will providers who are liberated by the ability to deal with their clients’ wills electronically, from inception to execution and future storage.  

The greater concern arises from the direction of travel towards electronic preparation and particularly execution of wills.

On the current line of thinking, electronic wills will require the amendment or replacement of the Wills Act 1837.  The rule there is that a valid will has to be in writing, signed by the testator in the presence of two other witnesses each of whom then sign the will (there are certain limited exceptions but in the main this is how wills have to be executed).  

In turn, the will that is signed is usually the result of a series of contacts between the lawyer or will writer and the will-maker, against the unusual setting of what is probably best described as qualified confidentiality for the will-maker, given the impact of Larke v Nugus, the case that set the approach for the examination of an otherwise-privileged will file in the event of a challenge.  

If a challenge to the will arises, those contacts with the lawyer preparing the will, and the circumstances around the execution of the will, become very important and subject to close scrutiny.  

This is not just a case of the majority of will-makers having to jump through hoops because of the minority where disputes emerge, however.  The nature of the scrutiny that is given to wills when subject to challenge, whether as a consequence of being required to be proved in solemn form or being subject to a direct challenge by a third party, should be reflected in the processes to be undertaken for the preparation of all wills, including that majority that will never be subject to challenge.  It is those safeguards that make wills so robust, and such an important part of succession planning.

A realistic concern is that anything that waters down the onerous requirements around the execution of wills (and which in turn, is likely to have a watering down effect on their preparation, in reality) is not to be encouraged.  

It sounds like a protectionist argument, but the nature of wills and their role in documenting the disposition of the estates (often of significant value) of individuals, executed by the older generation, who can in reality be more subject to pressure or influence, means that the hoops that have to be jumped through appear worthwhile, because they protect the maker of any particular will.  That protection is derived both from the degree of caution needed in the will-making process, and then in the awkward need for manual execution in almost all circumstances, with two witnesses.  

While the commercial world has clearly shown the ability to adjust to an online approach, with the electronic execution of documents being widespread, and regarded as safe, the circumstances between many of the transactions relying upon that technology and the individual nature of someone making a will means that the adoption of technology in one area is not necessarily a reliable indicator of how it will impact a very different area. 

Collectively the current rules around wills, while no doubt creating some frustration both for those making the will and those drafting them, present a robust system where will-makers can have confidence that, while they cannot rule out a challenge being made to their will, the strength of the process around it means that the opportunity to interfere with the wishes of the will-maker is more limited.  In turn, that means that their wishes stand a better prospect of being respected.

So the brave new world that may be coming may be helpful in certain respects – wills might be turned around faster, and there might be less drama around their execution.  
 

But there could be longer term consequences, including a weakening of the will as an operative document in itself.  It is to be hoped that the risk of this will give rise to a cautious approach before there is a fundamental change in the system.

 [This item was first published in ThoughtLeaders4 Private Client Magazine, Issue 14, March 2024 - link below].