Wills By Text Or Email, Anyone?

04 / 12 / 2017

In July 2017, the Law Commission issued its long-awaited reform project on the law of Wills. The law largely derives from legislation passed in 1837 and there have long been calls for a more modern regime, not least because around 40% of the population are estimated to die without a Will.

The project addresses a multitude of different testamentary issues, but of particular interest is the commentary on digitally created Wills or the execution of Wills by electronic signature. Currently, Wills are only valid if they are made in hard copy, signed and witnessed. Digital devices are ubiquitous now and for the young they are their preferred method of communication. Should the law move with the times and recognise Wills set out in an email or text? There has been a recent case in Australia where a draft text message was upheld as a valid Will.

The Law Commission does not draw an overall conclusion but invites comments and highlights how difficult it is to update this area. Electronic signatures and digitally created Wills do not lend themselves to considered thought, and there is not currently the right level of technology to protect the system from abuse: ensuring that the person who signs is the true testator, that the document was witnessed, and there was no influence by a third party are just some of the issues. In our view, much more work needs to be undertaken to demonstrate that “digital Wills” are the way forward rather than just an expedient answer to a difficult problem.

The same questions can be asked of trust deeds. Whilst electronic signatures are permitted in contracts, a trust deed cannot be signed electronically for much the same reasons as noted above. However, as and when technology advances in this area (and it will surely do so), we will likely see the developments extended to the law of trusts.

More informal supporting trust documents, such as a settlor’s Letter of Wishes, can be in digital format however, provided the trustees are satisfied that the document is genuinely from the settlor.

As for the Law Commission’s Wills project, the responses are now being reviewed and the Commission is expected to publish these and its overall recommendations in due course. Wedlake Bell has submitted a response on this which can be read in full on our website.