Wills, Tech & Trouble: The Law Commission’s Battle Against 1837

For centuries, Will writing in England and Wales has been governed by the Wills Act 1837, a law that has remained largely unchanged despite technological advancements. The traditional requirements for a valid Will include: a written format (typically on paper), signature by the testator (the person making the Will), and witnessing by two individuals (who must be present at the time of signing). While these formalities ensure authenticity and prevent fraud, they also create barriers for those who may struggle with physical documentation.

Since 2016, legal experts have been working on reforming the outdated piece of legislation. Society has changed significantly since the 19^th century: people live longer, more people suffer from conditions like dementia (around 900,000 in the UK), and digital documents are replacing paper. The Law Commission has been exploring whether electronic Wills should be legally recognized, ensuring they are secure and reliable.

During the COVID-19 lockdowns, video-witnessed Wills became temporarily legal, proving that remote execution can work. While most legal experts remain cautious about electronic Wills, the Law Commission has proposed the new Wills Bill 2025 which would allow the government to set rules on digital Wills, including requirements for electronic signatures, witnessing, and security measures like preventing fraud or alteration. However, they have stopped short of requiring a national Will registration system, instead suggesting that digital Wills should be stored securely – perhaps using blockchain technology.

One key issue in Will disputes is undue influence – where someone manipulates a person into changing their Will. The current law makes it very difficult to prove this, leading many disputes to focus on lack of knowledge or approval instead. The proposed reforms would allow courts to infer undue influence when there is reasonable evidence, shifting the burden of proof to the beneficiaries of a disputed Will.

Right now, getting married or entering a civil partnership automatically cancels a Will, even if the person later loses capacity and the marriage is declared invalid. This has led to concerns over ‘predatory marriages’, where vulnerable people are exploited. The Law Commission recommends abolishing this rule, though some experts fear this might increase inheritance disputes if people don’t update their Wills after marriage.

Currently, if a Will fails to meet formal requirements (like a missing signature), it is invalid – even if the person’s wishes are clear. The proposed changes would allow courts to approve such Wills in exceptional circumstances, ensuring people’s intentions aren’t ignored due to technical errors.

The law currently uses two different tests for mental capacity – one for deceased individuals (Banks v Goodfellow) and another for living individuals (Mental Capacity Act 2005). The Commission wants to simplify this by using the 2005 Act test exclusively while keeping guidance from older case law.

People who enter Mutual Will agreements sometimes prevent their dependents from making inheritance claims under the Inheritance (Provision for Family and Dependants) Act 1975. The Law Commission proposes ensuring that property tied up in Mutual Wills is still part of a person’s net estate, allowing dependents to claim financial provision.

The reform process is ongoing. The STEP advisory group is actively monitoring developments, and the government is expected to respond soon on whether to implement these recommendations. The introduction of electronic Wills in England and Wales could revolutionize estate planning, making it more convenient and adaptable to modern lifestyles. However, careful implementation and legal clarity Will be essential to ensure that digital Wills are both secure and reliable.