Electronic Wills: Modernising Inheritance for the Digital Age: A Look at Proposed Reforms to Wills Law.

The way we live, work and communicate has undergone a digital revolution over the last 20 years, yet, in many respects, the law of Wills remains trapped in the 19^th century. The Law Commission’s final report on Wills presents a range of proposals to bring the law up to date. One of the most striking is the recommendation to formally allow electronic Wills (e-wills), a reform that could have extreme consequences for both in practice and public access to justice.

Although the language of e-wills may sound technical, the core issue is simple: should people be allowed to make their Wills electronically, just as they do with so many other important documents? The Law Commission thinks the answer is yes, provided safeguards are in place.

Current Law: Strict Formalities and No Room for Digital Alternatives:

The rules for making a valid Will in England and Wales are set out in section 9 of the Wills Act 1837, a statute that is now almost two centuries old. According to this provision, a Will must be:

1. In writing;
2. Signed by the testator (or someone else at their discretion and in their presence);
3. Signed in the joint presence of two witnesses, who also each sign the Will in the testator’s presence.

While these formalities have served to protect testators against fraud and undue influence, they also leave little room for flexibility. A document made totally electronically, no matter how clearly it expresses the testator’s wishes, is not recognised as a valid Will. There is also no statutory mechanism to allow Wills to be signed electronically or witnessed though video link, and a PDF typed up email to a solicitor, will writer or loved one remains legally ineffective unless it is subsequently printed and executed in compliance with the traditional section 9 requirements.

During the COVID-19 pandemic, the government introduced temporary regulations via statutory instrument to allow Wills to be witnessed remotely using video conferencing. However, these changed were always a temporary solution, and the regulations expired in January 2024. With their expiry, we reverted back to a legal framework that largely ignores the possibilities of modern technology for witnessing wills.

The Law Commission’s Proposal: Recognising Electronic Wills in a Controlled Way:

The Law Commission recommends that a new Wills Act should explicitly enable the use of electronic Wills. This is not a carte blanche to accept any digital message or voice note as a valid Will. Rather, the Commission proposes that the law should allow for e-wills where the document is:

• In electronic form, whether types or created using software
• Capable of being authenticated, meaning that the identity of the testator and witnesses can be verified
• Protected against tampering, through secure storage and version control mechanisms
• Signed and witnessed, whether in person or using videoconferencing, provided the integrity of the process is preserved.

Importantly, the Commission stops short of prescribing a fixed technological situation. Instead, it recommends that the Secretary of State should have regulation making powers to define what systems and platforms qualify as “reliable” for executing and storing electronic Wills. This approach acknowledges that technology evolves quickly, and that the law should not be locked into today’s standards.

Why Reform is Needed: Closing the Gap Between Law and Life:

The mismatch between legal formalities and how people live today is particularly stark when it comes to electronic communications. People store their most important personal and financial information online. Digital banking, online contracts, online identity verification, and e-signatures are standard across sectors. Yet in the context of Wills, this same person must still print, sign, and physically arrange two witnesses.

The rigidity disproportionately affects people who are elderly, housebound, disabled, or living abroad. It can also frustrate people at moment of crisis, such as those in hospital with no access to witnesses or those who die unexpectedly after expressing their wishes electronically but before formal execution.

Moreover, the current law may be contributing to the broader problem of intestacy. A significant proportion of UK adults do not have a valid Will. Allowing digital execution and storage and storage of Wills could lower barriers to making a Will, especially for younger or more tech-savvy individuals who may be deterred by the traditional paper-based process.

A Balanced Reform: Innovation with Safeguards:

The Law Commission is aware of the risks involved in allowing e-wills. Fraud, forgery, and undue influence are longstanding concerns in Wills law, and digitalisation could introduce new vulnerabilities. For example, a deceitful individual might coach an elderly testator via video call or manipulate an unsophisticated user into using unsecure software.

To address these concerns, the Commission places considerable emphasis on the need for “a reliable system”. This would include mechanisms to:

• Verify the identity of witnesses
• Ensure the Will is fixed at the time of execution and cannot be altered undetected
• Log the date and method of signing and witnessing
• Provide a single, authoritative version of the Will.

The Commission does not propose making digital storage mandatory or requiring Wills to be registered on a central database. Instead, it allows for voluntary use of secure platforms that meet future standards set out in regulations. In this way, the reform opens the door to modernisation while maintaining the testator’s autonomy and legal oversight.

Comparative Perspective: Learning from the Other Jurisdictions:

England and Wales are not alone in considering e-wills. Several jurisdictions have already taken steps to modernise:

• In Scotland, the formalities are more flexible, and electronic signatures are recognised in certain circumstances.
• In Australia, courts in some states have accepted unsent text messages or notes on a smart phone as valid informal Wills.
• In Canada and various US states, legislation has been introduced to formally recognise e-wills with e-signatures and remote witnessing.
• In New Zealand, courts can validate informal electronic documents under a dispensing power.

The Law Commission recommends that England and Wales should learn from these examples while tailoring the rules to local practice and expectations.

Final Thoughts: A Quiet Revolution with Real Impact:

The introduction of electronic Wills may seem like a technical update, but its implications are wide-ranging. It reflects a broader shift in the legal system towards accessibility, flexibility, and responsiveness to how people live. It also represents a vital opportunity to reduce the gap between express intention and legal effect.

At the same time, this is not a free for all. The Law Commission’s proposals are careful, incremental, and grounded in the principles of certain protection and underpin all Wills law. If implemented that will provide legal recognition for modern practises without sacrificing the security and seriousness that a Will requires.

As the Law Commission makes clear, reform is not about technology for its own sake. It’s about ensuring that people’s final wishes are respected, no matter the format in which they are made.