The rapid shift toward digital solutions has now reached the realm of estate planning. Electronic Wills (e-Wills) offer attractive benefits such as greater efficiency, remote access, and reduced reliance on physical paperwork. At present, e-Wills are not legally valid in England and Wales under the Wills Act 1837, but the Law Commission has recommended pilot schemes—such as video witnessing and secure digital signatures—that may pave the way for future legislation. This blog explores the potential disputes that could arise as electronic Wills move from theory to practice.
1. Legal framework for E-Wills
Under section 9 of the Wills Act 1837, a Will in England and Wales must be in writing, signed by the testator and witnessed in person by two individuals present at the same time. Currently, no statutory provision permits full electronic execution of Wills, meaning any e-Will falls outside the Act’s formal requirements and risks being declared invalid.
In July 2022, the Law Commission published Consultation Paper No. 235, “Electronic Execution of Documents”, which recommended controlled pilot schemes to test video witnessing and secure digital signatures. Until Parliament enacts reforms based on those pilots, electronic Wills remain in a legal grey area and may face challenges on formal compliance grounds.
2. Common grounds to contest an E-Will
There are four principal grounds on which litigants may challenge the validity of an electronic Will in England and Wales:
- Lack of proper execution
Digital execution platforms often struggle to replicate the strict tripartite witnessing rule under section 9 of the Wills Act 1837, exposing e-Wills to invalidity challenges.
- Testamentary capacity
The remote nature of signing sessions can obscure whether the testator truly understood the nature and consequences of making a Will. Courts will apply the traditional Banks v Goodfellow test and demand clear evidence of capacity.
- Undue influence and fraud
Without face-to-face interaction, e-Wills may conceal coercion or fraudulent manipulation. In Williams v Estate of Williams, the High Court emphasised the need for “rigorous proof” when undue influence is alleged in remote executions.
- Ambiguous platform records
Faulty audit trails or template errors in the digital Will-creation software can produce unclear or contradictory provisions, leading to disputes over the testator’s true intentions, as highlighted in Marley v Rawlings.
3. Electronic secret trusts and half-secret trusts
Even if an electronic Will is properly executed, it may give rise to complex trust disputes under traditional secret or half-secret trust doctrines:
- Secret trusts
If a testator communicates fiduciary obligations after executing the Will—via email or messaging apps, for example—the Courts may enforce the trust provided the classic requirements of intention, communication, and acceptance are satisfied. However, the inherent fragility of digital records can create evidential challenges in proving those requirements.
- Half-secret trusts
Where a Will refers to a trust without detailing its terms, beneficiaries rely on external evidence of the testator’s instructions. Electronic correspondence can fulfill the formalities, but questions often arise over authenticity, timing, and the exact content of those communications, as seen in Kasperbauer v Griffith.
4. Digital assets in probate
Electronic Wills frequently include modern digital assets such as cryptocurrencies, non-fungible tokens (NFTs), and online account credentials. Executors may face unique hurdles:
- Accessing private keys
Without clear instructions or secure password-management protocols, vital private keys and access credentials can become irretrievable, effectively locking digital assets out of the estate.
- Platform terms
Online service providers may refuse to honour probate registry orders if the execution method of the Will does not align with their own terms of service, spawning additional litigation to compel compliance.
- Valuation and tax implications
The often-volatile nature of digital asset values complicates estate valuation and inheritance tax calculations, potentially leading to disputes between HM Revenue & Customs and beneficiaries over the correct liability.
5. Mitigating E-Will disputes: best practices
To minimise the risk of contentious disputes, practitioners and testators should consider the following best practices:
- Hybrid execution
Combine electronic signing with a brief in-person session—such as having the testator sign a paper addendum witnessed traditionally—to bridge the gap between digital convenience and formal requirements.
- Expert platform selection
Choose e-Will providers offering end-to-end encryption, tamper-evident audit trails, and secure video-witnessing to bolster the document’s integrity.
- Comprehensive digital records
Archive all video-witnessing sessions, digital signature certificates, identity verifications, and contemporaneous capacity assessments to create a robust evidential record.
- Regular reviews and updates
Revisit and re-execute electronic Wills whenever there are significant changes in assets, family circumstances, or applicable law to prevent outdated or non-compliant documents.
Comment
Electronic Wills hold the promise of revolutionising estate planning in England and Wales by delivering speed, convenience, and reduced paperwork. Yet until legislative reform formally validates digital execution methods, e-Wills remain vulnerable to challenges over validity, capacity, undue influence, and digital asset administration. By adhering to hybrid execution models, employing secure platforms, and maintaining meticulous records, practitioners and testators can balance the advantages of electronic Wills against the risk of costly probate and trust disputes.
How can we help?
Amrik Basra is an Associate in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the above subject, don’t hesitate to get in touch with Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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