Proposals to bring the law on wills into 21st century practice are long overdue, but an essential question has unfortunately been left outside the scope of the reform: access to legal advice, says Jean-Yves Gilg
17 July 2017
Meet Jane Smith. Jane has just made an e-will and she is about to authenticate it. At the moment, however, Jane only exists in the future.
The problem she faces at present is that ‘anyone can type “Jane Smith” into an electronic document without Jane Smith’s knowledge or involvement’. This is the sober acknowledgement the Law Commission makes in its consultation on modernising the law on wills as it considers the many obstacles to bringing will writing into the digital age.
Taking the Victorian dust off the 1837 Wills Act and making it fit for the 21st century will involve loosening some of the formality requirements essential to the validity of a will without losing the essential safety features of the current regime.
One very practical proposal is to give judges a dispensing power, which would help resolve unfair outcomes where a formal requirement is missing but there is unequivocal evidence of the testator’s wishes. Another is to align the capacity test with that applicable under the Mental Capacity Act 2005 and take better account of conditions such dementia, while scrapping references to concepts such as ‘insane delusion’. Both these changes are long overdue.
Much trickier is the engineering of an electronic will-writing framework that is both flexible and secure – a system where the whole process is digital and not just a certified scanned copy of an authentic document. In the current state of technology, however, even the most sophisticated processes fail to guarantee the level of security provided by a wet signature on a document witnessed by two people present in the same room at the same time.
Despite regular – and increasingly serious – hacks, our day-to-day relationship with technology is one of growing trust. We let computers remember our passwords, we authorise online stores to keep our credit card details, and we activate mobile devices using fingerprint recognition.
This is progress driven by commerce. Making an electronic or digital will – the two are not exactly interchangeable – is a different process. It’s a unilateral act. Encryption technology will be part of the solution but secure communication and storage are only one piece of the jigsaw.
Whatever the solution, it will probably involve an authenticating authority. This could be a private undertaking or a public body. Either way, no organisation would take on this responsibility without a clear benefit, whether it’s commercial interest or the wider public interest.
The trouble is, there is no obvious demand for digital wills at the moment. However exciting they may sound as a Shoreditch hackathon project, there isn’t the same need as, say, getting an online court up and running to secure access to justice in an age of court closures, struggling law centres, and virtually non-existent legal aid.
There is also a more fundamental concern. Drawing up a will is merely the mechanical end point of an in-depth reflection process. Keeping the formality requirements without making will writing a regulated activity has stimulated unregulated providers to offer cheap will-writing services. It hasn’t encouraged testators to seek professional advice – although some undoubtedly do. Electronic wills would just upgrade the problem into the digital environment. And if homemade e-wills take off on the scale the government seems keen to encourage, it could even make it worse.
What’s more important for the likes of Jane Smith is to ensure that they have access to professional advice beforehand, not just making it easier to have a will written. Making a will is one of the most important decisions we make in our lifetime, and the focus for any change in the law should be on getting it right, not just doing it quickly and cheaply. Unfortunately, that’s not part of the Law Commission’s brief.
This story was first published on Solicitors Journal on 17 July 2017 and is reproduced by kind permission