Time For The Digital Quill

July 2017 marked the start of a period of public consultation on Will reform by the Law Commission the period of which closed in November 2017. 

At the end of this there was to be analysis and policy formulation in which a final report was to be prepared and parliamentary counsel instructed to prepare a Will Reform Bill to introduce the long-awaited reforms on Wills. However, the work was ‘temporarily’ shelved with the Wills work suspended due to a Government request to undertake a review of the law concerning weddings, and since this time little else seems to have happened. So, in the post Brexit period, it is interesting to look at the fledgling proposals and consider what may happen when the political (no pun intended) to deal with this, returns.

The law as it presently stands is still governed by nineteenth century legislation namely the Wills Act 1837 as amended. The governing principles of this are quite straight forward. In order to be valid a Will must be in writing and written by someone who has sufficient age and mental capacity to understand the nature of the document, and it must be signed in the presence of two witnesses. To be frank, the genius of this long-standing legislation is in its wonderful simplicity, and many would argue that it has stood us all in good stead for the past 183 years. So, if it isn’t broken why mend it?

Well the first answer is the time it was written. The nineteenth century was not known for a flexible approach to many things and this is reflected in the Wills Act 1837. The legislation on the one hand is clear, but is also very rigid and does not allow, it would seem, for any degree of interpretation when looking at a Will. In effect this means that a testator’s clear wishes cannot be implemented if the necessary formalities as laid down by the Act have not been followed. It is this rigidity that has been examined as needing significant reform as there is a view growing in prominence that this has led to significant injustice over the years. Where there is clear evidence of what the intentions of the deceased were but the Will has failed in the formalities, then a clear area for reform would be to grant to the courts the power to dispense with the requirements, on the basis of testamentary justice and allow a Will flawed in statutory formalities to succeed.

Another area for consideration is the ageing population, which in turn has brought with it a growing dementia health crisis. Although the test for capacity for making a Will is quite a low one it does not reflect within it, modern understanding of diseases such as dementia. Here, there is considerable scope for reforms to incorporate a far more comprehensive test for capacity, which takes account of twenty first century understanding of such diseases.

Whatever that test would be, however welcome, would have to be revealed by the draft legislation as and when introduced. At the time of writing, it is envisaged that the legislation would provide statutory guidance for medics and other professionals in forming a judgement as to whether a person has sufficient capacity to make a Will. Again, whatever form this Will take its very much at this time a matter of wait and see.

There are also other matters that have been considered under proposed reforms. Undue influence which of course is endemically linked to the issue of capacity, is also an area that has come under scrutiny.  The ambit of the reform is focussed on a new set of rules designed to prevent people who are making a Will from being unduly influenced. There have also been proposals to reduce the age that a person can make a Will from 18 to 16, and whether the rule that marriage revokes a Will unless made in contemplation of marriage should remain. There was also one other major consideration and that is the fact that only 40% of the population currently make a Will. The Commission was to consider through public consultation whether there are any actual or perceived barriers to making a Will.

So, as can be seen a comprehensive package of Will reform was in the offing but is yet to materialise. There are predictions of what can be.

In considering the issue of capacity, there is a consensus of opinion that many people who have certain disabilities or health problems can make decisions for themselves but under the existing law are deemed to lack capacity to make a Will. This would include people who have suffered severe head injury and are under deputyship orders but remain able to communicate their wishes. The legislation that is envisaged under these recommendations would enable in theory a more comprehensive assessment to possibly allow such parties to have their own Will. This of course would have to be balanced with an equally comprehensive safeguard to prevent such parties being bullied into leaving their money to parties who have exercised undue influence.

To establish such a framework virtuous though it undoubtedly is, Will require some drafting gymnastics. Without going into too great a depth it is submitted that the legislation Will have to make some presumptions as to who a party with tested capacity would normally wish to leave their estate to, for example issue or siblings or parents, and equally make a presumption of where undue influence may have arisen. For example, a person’s long-standing carer being left the entire estate while close family members are excluded. Although this is a simplistic example, it does demonstrate the potential minefield of such high ambitions. This is because for every presumption made there must be an open potential to rebut the presumption, if not, then the whole basis of testamentary freedom could end up being called into question.

Finally, there would if and when this comes to pass, be a relaxing of the rigidity of interpretation both in text and formality. Essentially small mistakes in a Will would be more easily forgiven presumably about looking at the said mistake in the context of a document as a whole. Such a relaxation when taken with the concern that currently only 4 out of 10 people make a Will, suggests that the legislation is making way to the encouragement of home-made Wills. At the time of writing there are several paper packages cheaply available that allow for the home-made Will.

The suggestion of these reforms is that electronic or computer Wills should finally be allowed, the day of the digital quill being as mighty as the pen, would arrive. If that is the case then all of what is envisaged above could, with technology being what it is, be encapsulated within a software programme. The Wills app that would create a binding Will could if it’s not already in existence be just around the corner, with a computer error being far easier to forgive than a human one. However as enticing and intriguing as the possibility of an electronic or computer Will actually is, all sorts of challenges arise that no doubt someone will solve. In the main these break down into two immediate ones.

The first would be, once created, how would a computer-generated Will be stored? The obvious answer of course is a data cloud. The second issue is once stored what are the guarantees against hacking and altering a Will?  It may well be that if this does go ahead then the long-awaited National Wills Registration service could take another step forward by default. If there is one data cloud developed and if there is one safe central registry for computer based Wills, then the person who comes up with it, if the legislation is ever enacted, is going to be able to charge for it.

However, for the moment we must all sit and wait, for after 180 years or so it would appear that 3 years is a trifle, in waiting for whatever reforms are actually proposed in draft form.

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