Consultation on electronic wills and the effect of marriage/civil partnership on an existing will in England and Wales

As reported in our earlier bulletin, the Law Commission restarted its wills project earlier this year. On 5 October, it launched its anticipated consultation paper.

This “Supplementary consultation” focuses on two main issues which have recently become very topical.

The first is whether electronic wills should be allowed in light of technological and societal developments. The second is whether the rule that marriage or a civil partnership automatically revokes a will should be retained in the light of concerns about predatory marriage and vulnerable people.

The Covid pandemic highlighted the problems with execution of wills and, in the UK, provisions were introduced for virtual witnessing of paper wills. However, many countries went farther and introduced permanent reforms to enable electronic wills.

The Law Commission is now seeking views on whether a new Wills Act should permit electronic wills, either immediately or by allowing for them to be introduced later. The new legislation could go further than the temporary measures brought in during the pandemic. Fully electronic wills could be created digitally, using electronic signatures, and could be stored electronically with no paper version needed. However, any legal provision for electronic wills would need to ensure that they are as secure as paper wills. The key question, therefore, is how electronic wills can be made legally valid and how bespoke requirements for these wills should be introduced.

The issue of predatory marriages was recently highlighted in a Channel 5 documentary about “Inheritance Wars”. In one episode, a 92-year-old widow with severe dementia was befriended by a man. She was apparently unable to make even simple decisions but married the man a few months before her death, with her family having no notice of this. Although Registrars have responsibility for judgment of mental capacity on the day of marriage, they often lack training and/or awareness of capacity issues.

As mentioned above, under English law, a marriage or civil partnership automatically revokes an existing will so, as a result of marriage in this case, the lady’s children lost their inheritance and indeed were not even able to bury their mother. This case resulted in the daughter of the lady starting a campaign for a change in the law, resulting in a Private Member’s Bill from her local MP. There are apparently numerous similar examples.

In this regard, the new consultation seeks to establish how often this form of financial abuse takes place and considers whether wills should continue to be automatically revoked by marriage or civil partnership.

The Commission asks the following main questions (with a lot of supplementary questions on the details of the proposals as well as any evidence of the need for change):

  • Should electronic wills be legally valid? If yes, how, and when should bespoke requirements for these wills be introduced?
  • Should marriage or civil partnership automatically revoke a will, given the risk of predatory marriage?

Responses to the consultations should be submitted by 8 December 2023.

The consultation document is available here and the response can be made online here.

While this particular consultation focuses on the two issues mentioned above, the Law Commission’s Wills project covers all of the following:

  • The formal and substantial validity of a will, including:
    • testamentary capacity;
    • the formalities for a valid will (currently governed by section 9 of the Wills Act 1837), including an examination of the issue of a will being made electronically;
    • the interpretation and rectification of a will;
    • the possibility of a power to dispense with the formalities otherwise necessary for a will to be valid;
    • the age at which a will can validly be made; and
    • knowledge and approval and undue influence in the testamentary context.
  • Statutory wills.
  • Mutual wills.
  • Ademption of testamentary gifts (where the property no longer exists or has changed in substance) and revocation of wills.
  • The registration of wills.
  • Donationes mortis causa.
  • The comparative and international context of the law of wills.
  • Other areas of the law of wills as set out in the Wills Act 1837.

Given that wills in England and Wales are governed by the Wills Act 1837 (that’s almost two hundred years old!) and case law, it is clearly high time for reform. Clearly, the subject is complex and, unfortunately, the Law Commission’s Wills Project, ongoing since 2016, was interrupted for two years due to Covid. Let’s hope, now that things are moving again, it won’t be too long before we see reform. Before that happens, though, there will probably be several more Supplementary consultations.

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