Electric Wills: what are they, and how will they change the act of making a Will?
The Law Commission has recently proposed modernising the Will making process to incorporate the use of digital technology. Essentially, it could be the case that a Will no longer requires a ‘wet’ (handwritten) signature by the person making it.
This is in part to do with the fact that 40% of British adults do not make Wills and the difficulty that this so often causes. It is hoped therefore that 'electronic Wills' makes the entire process more convenient and in turn, something more likely to be undertaken.
While we agree that everybody should have a Will, the proposed changes are concerning insofar as they leave open to what we would argue is a huge potential for abuse.
Currently, to make a valid Will an adult must have the necessary ‘testamentary capacity’ and intention and must observe all legal formalities when executing (signing) their Will.
A Will isn't valid unless:
It is in writing, signed by the Testator (the person making the Will) or some other person at their direction (the latter only in very limited circumstances);
It appears that the Testator intended by that signature to give effect to the Will;
The signature is made or acknowledged by the Testator in the presence of two or more independent witnesses at the same time;
And each witness signs the Will or acknowledges the Testator’s signature in the presence of the Testator.
In addition, a Will will not be valid if the Testator is subject to undue influence or pressure by somebody else to make it.
Will These Measures Protect the Testator?
The above formalities clearly intend to safeguard the Testator from these very matters; particularly the requirement for independent witnesses. If a Testator is no longer required to adhere to the above, could we ever be certain that they intended what is written in their Will? Could we even be sure that the Testator had any knowledge of the content of their Will? It could easily be assumed that an electronic signature may not have come from the Testator himself, and it is not beyond the realms of possibility to suspect that some (exploitative) relatives or friends of especially vulnerable persons such as the elderly or unwell could set up and sign a Will on the Testator’s behalf.
Whilst handwriting could be analysed if similar concerns were raised, a digital footprint would arguably be much more difficult to verify.
The proposed changes could make these issues more prevalent and conversely, the entire process could become more complex. While indeed allowing e-Wills might encourage greater numbers to make a Will, the administrative process (the period following death) could become increasingly marred by accusations of family members as to the validity of that Will in the very first instance. This, we believe would achieve the opposite of what the Law Commission intends.
Whether these proposals take effect and however the Will making process continues to adapt, it is absolutely our view that every adult should make a Will to ensure that their property and/or assets pass in accordance with their wishes on their death.
How can Cunningtons help with my Will?
Our Wills and Probate Department specialise in the drafting of Wills, meaning that they are able to advise clients on how best to capture their particular wishes. Our team will always take instruction direct from the Testator to guarantee as far as is possible that the documents are made free from any outside pressure or undue influence, and are available to assist with the signing of the Will to ensure that all necessary formalities are complied with.
How much does a Will cost?
- A simple, single Will (single person) - £130 plus VAT
- A single Will to include a right of residence, life interest, or discretionary trust - £300 plus VAT
- Simple mirror Wills (two persons) - £200 plus VAT
- Mirror Wills to include right of residence, life interest, or discretionary trusts - £600 plus VAT
- Severance of joint tenancy (if required) - £100 plus VAT per property