Under the status quo, in the United Kingdom, wills written by individuals are only valid if they are signed in the presence of two witnesses, who in turn sign it in the presence of the person with the will. This may sound straightforward, although there are many cases where individuals have to hire solicitors to work around possible complications: For example, if they share a property with someone who is not their spouse. In addition, marriages automatically nullify any will written by someone prior.
The Law Commission launched a Supplementary Consultation Paper on the 5th of October, 2023, to reconsider the use of electronic wills and how marriage or civil partnership can revoke a person’s will. The issue of wills is an inherently important one, as an intestate death can cause friction and emotional distress to families during a time of grief. The Covid-19 pandemic demonstrated how the lack of modern technology in the will-making process can provide an obstacle to those needing a will. While the fact that 40% of the adult population does not have a will is stressed as a problem by the Law Commission, what matters more are cases where a person who wants to make a will is unable to do so, a possibility which was revealed in an unprecedented scale during the Covid-19 pandemic. While the proposed reforms have merit, a will has unique significance to a person’s life and legacy and so changes to it must be conservative rather than radical.
The concerns over the use of electronic wills and the relationship between marriage and wills are often intertwined in real-world cases. The Law Society proposes that the modern understanding of medical conditions such as dementia should be considered and that rules to protect those writing a will from being excessively and negatively influenced by another person should be re-enforced. These two justifications largely stem from the growing concern over “predatory marriages,” where one person, usually mentally sound and younger, marries an older person with diminished mental capacity, resulting in one person’s agency over their will being overridden.
Concern over predatory marriages grew in the UK following the case of Joan Blass. Joan was 91 and suffering from severe dementia when a younger man, 68, married her secretly – without the knowledge of her family – a few months before her death. The Joan Blass campaign named after her now strongly supports reforming the 1837 Wills Act so marriage does not automatically revoke a will. The campaign also stressed the necessity of providing statutory guidance for doctors to assess whether the person has the capacity to make a will. While outside the immediate concerns of the Law Commission, the campaign rightfully recognises what legislation will need to be introduced in order to make any reform effective, such as creating an offence of Predatory Marriage as a subset of Forced Marriage. This particular suggestion seems convincing as with forced marriages, there is a clear breach of agency and power imbalance. There is also a monetary consideration, as the automatic nullification of wills upon marriages forces people to re-hire a solicitor to write their will. The case of Joan Blass provides plenty of gunpowder for those arguing that marriages should not automatically dissolve wills – this subsection of the 1837 Wills Act should be considered the most archaic and the most in need of immediate reform.
The Law Society is also concerned with the logistics of making electronic wills, namely the risk of fraud and the possible disadvantage for those who are not computer-literate. Daniel Watson’s proposed “third stance” seems to be the most reasonable – the formalities of the 1837 Act must be translated to the modern world in order to embrace technology while maintaining the original act’s security. Watson supports his case by pointing to the difficulties faced during the Covid-19 pandemic, where the demand for making wills rose while the process became more challenging due to social distancing and meeting indoors. The government’s response at the time with The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order SI 2020/952 provides precedent for Watson’s proposed reform for the future – wills could be witnessed remotely, although caution over the risks of doing so was abundant.
Therefore, it seems that the following should be true with any proposed reform:
Can people make a will electronically?
Yes.
Can people still make a will in person?
Yes.
Is making an electronic will easier than making one in person?
Possibly, although making a will in person should at least remain as easy as it is now.
Since the initial Consultation Paper in 2017, the use of electronic signatures have also become more frequent, and so a decisive shift in the adoption of technology in the matter of wills would not be a leap of faith. However, Helen Springthorpe, based on pointing to fears that video calls make it far more difficult to ensure that no one is off-camera prompting the Testator, argues that witnessing of wills via video call should only be used as a last resort. While video calls make it easier for someone to influence the will-making and witnessing process, it remains difficult for anyone to do so, and the risks attributed to adopting such technology need to be weighed against the time and resources spent to gather every party together for the witnessing of the will.
Taking a step back, proposed reforms to the Wills Act 1837 need to recognise the rarity and the significance of making a will – it is often a once-in-a-lifetime occurrence, different from merely signing a legal document when the convenience of frequently using e-signatures outweighs security risks. In addition, no one can be certain - except for end-of-life patients or those opting for assisted suicide – when they will need a will. For example, the unexpected illnesses of one partner very soon after marriage can leave couples unable to allocate time to the making of a new will before death, in which case the family are burdened with the additional emotional stress of dealing with the deceased person’s worldly possessions. As such, perhaps the formalities of this nineteenth-century law still have some merit in the world of e-signatures and Zoom calls. It is not only an inherently formal occasion – in the word’s common use – it is also a consequential one. So perhaps we should follow the advice of Springthrope and keep virtual witnessing to a minimum while doing away with wills being nullified by marriages.