Law Commission seeks views on electronic wills and predatory marriage

Law Commission seeks views on electronic wills and the risks posed by predatory marriage.

The Law Commission have opened up a consultation to review whether electronic wills should be allowed in light of technological and societal developments, ensuring the law remains fit for purpose.

They are also seeking views on whether marriage or a civil partnership should continue to revoke a will, given concerns about predatory marriage and vulnerable people.

Technological advancements and the effects of COVID-19 restrictions have made electronic wills more feasible. During the pandemic, several countries, including the UK, allowed paper wills to be witnessed virtually. Since then, some countries have introduced permanent reforms to enable electronic wills and the provision to witness wills virtually was extended to January 2024.

The Law Commission is seeking views on whether a new Wills Act should permit electronic wills, either immediately or by allowing for them to be introduced later. Any provision for electronic wills would need to ensure that they are as secure as paper wills.

Increasing concerns about predatory marriage cast potential doubts on whether a marriage or civil partnership should continue to revoke a person’s pre-existing will. The consultation seeks to determine how often this form of financial abuse takes place and considers whether wills should continue to be automatically revoked by marriage or civil partnership.

Predatory marriage is where a person marries someone, often who is elderly or who lacks mental capacity, as a form of financial abuse. This type of abuse is relevant to wills because marriage or civil partnership revokes a person’s will which means that their spouse or civil partner may inherit most if not all their estate in the absence of a new will.

The Commission’s supplementary consultation paper published today is part of a wider wills project.  The law on wills is primarily a product of the Victorian era – governed by the Wills Act 1837 and case law. The Law Commission’s project aims to provide a comprehensive review ensuring that the legislative framework governing wills reflects contemporary needs and continues to protect the most vulnerable.

Professor Nicholas Hopkins, Commissioner for Property, Family and Trust Law, said:

“Our review of wills aims to ensure that the law is modern and as straightforward as possible, protecting the most vulnerable and giving greater effect to everyone’s last wishes.

In light of recent technological and societal developments, we are seeking views on electronic wills and the effects of predatory marriage on wills. We welcome a wide range of responses to our consultation paper.”

The Commission asks:

• 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?

While innovation is welcome, practitioners warn that safeguards must be in place to protect the most vulnerable in society Emily Robertson, associate at Burgess Mee Family Law says: 

“The Law Commission’s consultation on the rule of marriage revoking a will is welcome albeit long overdue, after persistent calls for reform in this area.  It is simply too easy for bad actors to prey on vulnerable people and inherit their estates.

“However, the Commission’s consultation on electronic wills is a concern for professionals. If a will can be created, signed and witnessed electronically, there are almost no safeguards against fraud. Electronic wills will undoubtedly lead to more contentious probate claims.”

The Law Commission is seeking responses to its consultation by 8 December 2023. They welcome responses from anyone affected by, or with knowledge of, the issues covered.

The full supplementary consultation paper is published here.