WillsAn Overview of the Law Commission’s Final Report on Wills – Part Three

We’re continuing our overview of the Law Commission’s Final Report ‘Modernising Wills Law’. The Final Report contains a range of different recommendations on where the law on wills should, and should not, be updated. In this article, we delve further into those proposals, including electronic wills, undue influence, and knowledge and approval.

As with the previous editions, it is important to note that these are currently only recommendations. They do not yet constitute changes to the law. There is no guarantee that the government will adopt the draft Bill, and if so that it will pass through Parliament in its current form without amendments.

Electronic Wills

At the time of the 2017 Consultation, the idea of an electronic will was relatively novel. However, given the rapid technological advancements and the increased reliance on digital solutions during the COVID-19 pandemic, the Law Commission recognised the growing relevance of electronic wills. As a result, they revisited the topic in their 2023 Supplementary Consultation Paper, as they believed that public and professional views may have shifted.

Their findings confirmed this. While a majority still did not support the introduction of electronic wills, just under half were in favour. This marked significant increase in support since 2017 which they expect will only grow. The Law Commission also noted a growing belief that demand for electronic wills is likely to rise, particularly among younger generations.

In light of this, the Law Commission now recommends that electronic wills be expressly permitted. Provided the formality requirements are met, paper and electronic wills should be equally valid.

Electronic wills would be required to meet the same formalities as paper wills such as being in writing (meaning, for example, that a video will would not be valid). Additionally electronic wills would need to satisfy a further condition that a reliable system is used to ensure:

• The testator (or person signing on their behalf) and the witnesses are linked to their signatures at the time of signing
• The original will is identifiable from copies of it; and
• The original will is protected from unauthorised alteration of destruction

The Law Commission does not recommend a specific form of technology to meet these requirements. Instead, it recommends that a new Wills Act include a regulation-making power, allowing the Secretary of State to set out, via statutory instrument, how electronic wills may or must meet the formality requirements.

For electronic wills, the presence of witnesses may be satisfied by remote presence (e.g. video link). This would not be possible for a paper will, which will continue to require physical, in-person witnessing.

Finally, electronic wills should be capable of being altered, revoked, and revived in the same way as paper wills, including revocation by destruction.

The Law Commission is not recommending any mandatory registration requirements for an electronic will to be valid.

Undue Influence

The current legal threshold for proving undue influence is notoriously high. It requires clear evidence of coercion, and the burden of proof is always on the person challenging the will to prove it. This is contrasted with undue influence for lifetime gifts, where a presumption may arise in certain circumstances.

The lack of a presumption for testamentary undue influence can therefore make it difficult to prove, especially as one of the parties involved has passed away, making evidence harder to obtain.

In the 2017 Consultation Paper, the Law Commission suggested establishing a statutory doctrine of testamentary undue influence and proposed two options:

1. A structured approach – the presumption of undue influence would arise only if each limb of a defined test is satisfied.
2. A discretionary approach – the court would have the power to presume undue influence by considering all the circumstances of the case.

Views from consultees were evenly split, with no clear consensus. The Law Commission now recommends introducing a discretionary statutory doctrine of testamentary undue influence. This would allow courts to infer undue influence where there are reasonable grounds to suspect it. The suspicion could apply to the entire will or to specific gifts within it.

Under the proposed rules, courts would consider:

• The nature of the relationship between the testator and the alleged influencer;
• The conduct of the alleged influencer;
• The circumstances surrounding the making of the will.

If the court infers suspicion, the burden would shift to the alleged influencer to rebut it..

The Law Commission favours the discretionary approach for its flexibility, allowing undue influence to be inferred in a wide variety of circumstances. While a structured approach would offer more certainty, it would lack sufficient adaptability.

One of the responses to the consultation proposed that an automatic presumption of undue influence should arise where a beneficiary has been involved in the making of the will. Law Commission has not specifically recommended this but acknowledges their recommendation for the courts to infer undue influence where are reasonable grounds would allow such a presumption to arise in a more measured way. This is something practitioners may need to be wary of in the future.

Knowledge and Approval

In order to make a valid will, the testator must know and approve its contents. While closely related to testamentary capacity, this requirement focuses specifically on the testator’s awareness at the time of execution.

To improve clarity and consistency, the Law Commission recommends that this requirement placed on a statutory footing. This would help practitioners and courts apply the principle more uniformly and reduce ambiguity in contentious probate cases.

There is currently an exception to the knowledge and approval doctrine arising from the case of Parker v Felgate. This rule provides that if a testator lacks capacity at the time of execution, they may still be considered to have knowledge and approval if they had capacity when giving instructions and understand they are executing a will based on those instructions. This mirrors the exception to testamentary capacity discussed in the first article in this series.

The Law Commission also supports retaining the rule in Parker v Felgate in relation to knowledge and approval.

WillPack’s Opinion and Conclusion

WillPack is in theory in favour of electronic wills, as it has the potential to make will making easier in many case, more accessible and reduce costs. However, there are risks of misuse and potential litigation, and concerns that this could lead to a rise in low-quality e-wills. Without knowing the exact nature of the ‘reliable system’, it is difficult to comment with certainty.

In relation to undue influence, expanding the doctrine is sensible to offer greater protection against financial abuse. This may lead to an increase in litigation, which practitioners would need to be careful in protecting against if this change is implementing.

Placing the doctrine of knowledge and approval on statutory footing is a sensible suggestion.

Keep an eye out for the final article in this series where we will consider the last of the Law Commission’s recommendations.

 

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