Law Commission says electronic wills should be legalised – once a secure digital signature system is available
The independent body advising the Government on law reform has rejected the GOV.UK.Verify digital signature as suitable for authenticating people’s wills.
In proposals for a major review of Victorian era laws covering last wills and testaments – open for public consultaton until 10 November – the Law Commission has recommended that the Government take steps to make electronic wills valid in law. However, it says no suitable solution yet exists to meet the requirement that wills be signed before two witnesses.
In particular the commission has "concerns" as to whether the use of the Cabinet Office’s Verify system would be sufficient to protect people making wills from "undue influence and impersonation". The proposals note that "Verify does not currently ensure that the person entering the information is in fact the person he or she is purporting to be; rather it focuses on verifying that the person exists."
Perhaps more importantly, Verify lacks any facility for the participation of witnesses – regarded by the law as an essential safeguard against undue pressure and for proving the authenticity of a will in the event of a challenge.
The commission says the current legal status of electronic wills is "not clear". This is not surprisingly as the main legislation dates from 1837.
The law of wills mostly dates from 1837, and "It comes as no surprise that the law assumes that a will is a paper document". However, the proposals say the use of technology in wills has the potential to make wills quicker and easier to make. This could encourage more people to make wills – at present 40% of adults who die every year have never made one.
One option could be to give legal status to wills recorded on video. The commission says that, video recordings seem "ideally suited" to wills as the testator is directly linked to the content and witnesses can be present. There are difficulties, however: "Wills are technical documents in which it is important that language is used precisely. There is a risk of a spoken will being incomplete or open to interpretation unless carefully scripted."
It is also possible that computer generated imagery could be used to create a forgery – a risk "which is beyond our expertise to assess".
Finally, the commission raises the question of how digital wills, whether in written or video form, will be stored – potentially for decades.
Despite the commission’s enthusiasm for new technology, for now the safest advice remains to draw up a will with the help of a qualified expert – and with Victorian technology.