The reform of wills in a post-pandemic world

During the Covid-19 pandemic and associated lockdowns, complying with the strict formalities of the Wills Act 1837 for executing a will in England and Wales (in particular, the requirement to sign the will in the presence of two independent witnesses) proved to be a challenge for many people in light of social distancing and self-isolation requirements. To deal with these issues, the UK Government amended the Wills Act to permit the virtual witnessing of wills in England and Wales (albeit that this option was intended to be used only as a last resort); however, these changes were temporary and apply only to wills made on or before today (31 January 2024). 

The shortfalls of our 19th century laws relating to wills, some of which were highlighted during the pandemic, have sparked renewed interest in modernising these rules.

The Law Commission’s wills project

The reform of the laws relating to wills has been on the UK Government’s agenda for a number of years. In 2017, the Law Commission published a consultation paper which recommended modernising the laws “to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.” 

The 2017 consultation examined a number of areas for possible reform; however, due to competing demands on the Law Commission’s time, the wills project was paused for several years before a supplementary consultation paper was published in October 2023, focusing on two topics: the possible introduction of electronic wills and reforms to the rule that marriage or civil partnership automatically revokes a will. 

Electronic wills

The 2023 consultation notes that “at the time of the Consultation Paper in 2017, the case for allowing wills to be made in electronic form was relatively novel"; however, as a result of significant technological advancements and the huge acceleration in the use of digital documents since then (particularly during Covid-19), this is no longer the case. Accordingly, although the majority of consultees in 2017 “were wary of electronic wills or did not think that their potential benefits outweighed their perceived drawbacks”, the Law Commission believes that views may have changed since then and that “it would be a lost opportunity not to make provision for electronic wills in a new Wills Act”. Developments in other jurisdictions where electronic wills have been put on a permanent legislative footing are also noted in the consultation. 

There are, of course, a number of important issues which need to be considered, including, for example, ensuring that electronic wills are stored in such a way as to be reliably accessible and decipherable years, or even decades, after being made. The 2023 consultation suggests that a possible solution would be to impose an additional registration requirement for electronic wills. 

There is also a risk that the introduction of electronic wills could result in increased incidences of undue influence and fraud, or that testamentary capacity issues might go unnoticed if a testator is able to make an electronic will in physical isolation from others. 

However, these concerns should be considered in light of the potential benefits that electronic wills might bring. In particular, if electronic wills are stored on a centralised system, this would provide a clear trail of any testamentary changes and ensure that wills are not lost. There could also be advantages in the probate process, potentially allowing a will to be stored and then admitted to probate automatically on the testator’s death.

Revocation on marriage or civil partnership

Under current rules, if a person already has a will, that will is automatically revoked when they later marry or enter into a civil partnership. If the person then fails to make a new will following their marriage or civil partnership, the intestacy rules apply on their death. These rules protect the surviving spouse or civil partner by ensuring that the deceased’s estate passes, either fully or partially, to them (and not to the beneficiaries of the deceased’s previous will, which may have been drafted without the new spouse or civil partner in mind).

However, the Law Commission has expressed concerns that these rules reflect outdated societal norms and could result in inappropriate outcomes, for example, favouring second families over, say, the children from the testator’s previous marriage, or frustrating the wishes of people for whom marriage is not a significant change (for example, a couple that cohabits before marriage). 

The Law Commission has also highlighted the perceived increase in predatory marriages, whereby individuals seek to take advantage of these rules as a form of financial abuse. Whilst abolition of these rules could reduce this kind of abuse, and also promote testamentary freedom, it might leave genuine spouses or civil partners (who would no longer be protected by the intestacy rules) having to face making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. 

What happens next?

The Covid-19 pandemic has brought into sharp focus the fact that many of our laws relating to wills may be in need of modernisation. However, whilst there may be a demand for change, it is clear that there are a number of difficult issues which must be balanced and so it seems unlikely that any major reforms will be passed in the immediate future. We await publication of the Law Commission’s final recommendations following their 2023 consultation with interest; in the meantime, following the expiry at midnight tonight of the provisions permitting the remote witnessing of wills, testators will be obliged to comply with the traditional formalities of the Wills Act 1837 for signing their will.