Part 3 of this mini-series looks at the updates from the Law Commission on the Wills Act 1837 (Act). In this blog, we are looking at the updates regarding electronic Wills.
By way of a brief recap, the update from the Law Commissioner has been ongoing since 2016, with a slight pause in 2019. In 2023, the Law Commissioner published their Supplementary Consultation Paper which focused on two main issues:
- Electronic Will; and
- The rule that a marriage/civil partnership revokes an existing Will.
On 16 May 2025, they published their report, Modernising Wills Law, which contained two volumes: (1) recommendations for reform; and (2) contains their draft Bill for a new Wills Act that would give effect to their recommendations for legislative reform, which is accompanied with explanatory notes.
In this blog, I will be focusing on chapter 8: Electronic Wills.
They have already concluded that they do not recommend any fundamental changes to the formality requirements (see my previous blog for further details on this here). These requirements are an important consideration in relation to the possibility of electronic wills, meaning electronic documents that are executed and stored electronically. It is acknowledged that more careful consideration needs to be given to electronic wills, because Wills are unique, they are unilateral documents regularly made without the assistance of any professionals or any third party involvement, other than the two witnesses. There is also a risk of fraud and forgery, which is most commonly committed by a person close to the testator and is highly unlikely to come to light during the testator’s lifetime.
Due to the complexities of Wills, they consulted on the possibility of electronic wills, both in the 2017 Consultation Paper and the 2023 Supplementary Consultation Paper. In both papers, their provisional conclusion was that electronic wills should not be permitted by way of interpretation of the s9 requirements (see previous blog on formalities and requirements for further information here). If electronic wills are enabled, they should be subject to bespoke or additional formality requirements. That being said, attitudes did change significantly from 2017 to 2023 due to the 2020 pandemic. Although, the majority view is not in favour of electronic wills, there has been a significant shift in views such that they consider that the support for electronic wills shall only grow.
Accordingly, they made a recommendation that electronic wills should be expressly permitted under a new Wills Act because whether a will is in paper or electronic form is exclusively a matter of relevance to the formality requirements; so long as they are met, paper and electronic wills shall be equally valid and will be able to alter, revoke and revive one another. However, note that electronic wills, to prove their validity, should also comply with certain additional criteria.
The Law Commissioner’s recommendation for electronic wills:
- They should be capable of being formally valid on an equal basis to paper wills;
2. In addition to complying with the ordinary requirements for making a valid will, in order for electronic wills to be valid, it should be required that a reliable system is used, such that : (1) the testator and witnesses are linked to their signature at the time of signing; (2) the original or authentic will is identifiable from copies; and (3) the original or authentic will is protected from unauthorised alteration or destruction. The requirement of the presence of the person signing on behalf of the testator and the witness should be capable of being satisfied by remote presence.
3. (1) A new Wills Act should contain a regulation-making power, exercisable by the Secretary of State, under which regulations can be made to detail how electronic wills may or must fulfil the formality requirements; (2) the Secretary of State should be required to consult before exercising his power; and (3) this power should be subject to the negative resolution procedure.
4. Recommend that the rules applying to how wills can be altered, reviewed and revoked should apply to electronic wills, and that in particular, electronic wills should be capable of revocation by destruction.
How can we help?
Sophie Wilson is an Associate in our Dispute Resolution team.
If you have any queries relating to the above subject, please contact Sophie or another member of our team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
Contact us