Introduction
The law of succession in England and Wales is governed by a statutory framework that has remained largely unchanged since the Victorian era. The Wills Act 1837, particularly its strict formality requirements under section 9, was designed for a world of paper, ink, and in-person interaction. However, in the 21st century, where digital communication and electronic transactions are central to daily life, the Act's insistence on a physical, witnessed document appears increasingly out of step with modern society. This has prompted significant debate about whether the law should be reformed to recognise electronic wills.
This essay will argue that while the modernisation of the Wills Act 1837 is necessary, the immediate and widespread recognition of electronic wills would be premature and risky. The core functions of will formalities, primarily the protection of vulnerable testators from fraud and undue influence, remain critically important. Therefore, this essay contends that any reform should be cautious and incremental. The most appropriate first step would be to introduce a judicial dispensing power, as proposed by the Law Commission, to validate documents that do not meet the formal requirements but clearly represent the testator's intentions. A full legislative scheme for electronic wills should only follow once technological and procedural safeguards have been proven to be sufficiently robust to mitigate the significant risks involved.
The Enduring Purpose of Will Formalities
To understand the debate surrounding electronic wills, it is essential to first appreciate the current law and the reasons for its existence. Section 9 of the Wills Act 1837 stipulates that for a will to be valid, it must be: (a) in writing and signed by the testator, or by some other person in his presence and by his direction; (b) it appears that the testator intended by his signature to give effect to the will; (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either attests and signs the will or acknowledges his signature, in the presence of the testator.
These formalities serve several important functions, often categorised as the evidentiary, cautionary, channeling, and protective functions (Fuller, 1941). The evidentiary function ensures that there is reliable written evidence of the testator's intentions, reducing disputes after death. The cautionary function impresses upon the testator the seriousness and legal significance of making a will, encouraging them to reflect on their decision. The channeling function standardises the process, creating a safe and clear method for testators to dispose of their property, which simplifies the administration of estates.
Most importantly, the protective function aims to safeguard the testator from fraud and undue influence. The requirement for two independent witnesses, physically present with the testator, creates a significant practical barrier to coercion or forgery (Langbein, 1975). These witnesses can later provide evidence about the testator's capacity and freedom from duress. The rigidity of these rules means that any deviation, no matter how minor, can invalidate a will, sometimes defeating the clear intentions of the testator. Nevertheless, the courts have historically upheld the view that the certainty and protection provided by the rules outweigh the occasional injustice caused by their strict application. This protective purpose is the central challenge that any proposal for electronic wills must overcome.
The Case for Modernisation and Electronic Wills
The primary argument for recognising electronic wills is that the law must adapt to technological reality. The Law Commission noted in its 2017 consultation paper, Making a Will, that "the law of wills feels out of date" and has failed to keep pace with the fact that "many people are now more accustomed to communicating electronically than on paper" (Law Commission, 2017, p. 1). Refusing to recognise a will simply because it is in a digital format, rather than on paper, seems arbitrary when people conduct the most important aspects of their financial and personal lives online.
Recognising electronic wills could also enhance accessibility and encourage more people to make a will. Currently, a significant proportion of the population dies intestate, which can lead to their property being distributed in ways they would not have wanted. The perceived cost and formality of consulting a solicitor can be a deterrent. Electronic will-making services could potentially offer a cheaper and more convenient alternative, accessible from one's home. During the COVID-19 pandemic, the practical difficulties of complying with the presence requirement led to temporary legislation allowing for remote witnessing via video link (Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020). While a temporary fix, this demonstrated a recognised need for greater flexibility and the viability of using technology in the will-making process.
Furthermore, proponents argue that digital technology can offer new and potentially more robust forms of security than a handwritten signature. As one academic noted, "biometric identification, encryption, and digital time-stamping could ensure the integrity and authenticity of an electronic will to a degree that is simply not possible with paper" (Naidoo, 2017, p. 574). For example, a will could be secured with a fingerprint or facial recognition scan, linked to the testator, and stored on a secure server or a blockchain, creating a verifiable and tamper-evident record. Such methods could, in theory, offer greater protection against simple forgery than the current system.
The Risks and Challenges of Electronic Wills
Despite the potential benefits, the arguments against the immediate introduction of electronic wills are substantial and focus on the very protections the 1837 Act was designed to provide. The most significant concern is the heightened risk of fraud and undue influence. While a physical signature can be forged, forensic analysis can often detect it. Verifying the identity of a person executing a document online is far more complex. A password can be stolen or a person can be coerced into entering it.
The protective function of physical witnessing is particularly difficult to replicate electronically. A witness in the same room as the testator is well-placed to observe signs of duress, intoxication, or a lack of understanding. A person on the other end of a video call has a much more limited view and may not be able to detect subtle coercion happening off-screen (Law Commission, 2017). As Professor Alexandra Braun argues, undue influence often takes place in private, and the formal ceremony of execution in front of witnesses is a crucial moment where the testator’s isolation is broken. The "virtual presence" of a witness may not provide the same degree of protection as their "physical presence" (Braun, 2020).
A further problem is the digital divide. While many are comfortable with technology, a significant portion of the population, particularly the elderly and vulnerable who are most likely to be making wills, are not. A shift towards electronic wills could disenfranchise this group, making it harder for them to make a valid will without assistance, which itself could create an opportunity for abuse. Moreover, the issue of technological obsolescence and digital permanence is a serious practical concern. A will written on high-quality paper can last for centuries. A digital file, however, is vulnerable to data corruption, hardware failure, and changes in software formats. A will stored as a Microsoft Word document from 1995 may be difficult to open today; a will stored on a secure server is dependent on the survival of the company hosting it. Ensuring a digital will remains accessible and uncorrupted for decades after its creation is a significant technical and logistical hurdle.
A Path to Reform: The Law Commission's Cautious Approach
Recognising these competing arguments, the Law Commission has advocated a cautious and phased approach to reform. Its 2017 consultation paper did not recommend the immediate recognition of electronic wills. Instead, its central proposal was to grant the High Court a "dispensing power". This power would allow the court to uphold a will that does not meet the section 9 formalities if the court is satisfied that the document, whether electronic or on paper, represents the testator's intentions (Law Commission, 2017, para 5.56). Such a power already exists in other common law jurisdictions like Australia and Canada, where it has been used to recognise unconventional forms of wills, including text messages and unsent emails, as valid expressions of testamentary intent.
A dispensing power would provide a safety net to prevent the testator’s wishes from being frustrated by technical errors while still retaining the section 9 formalities as the primary, "gold standard" method of will-making. It would allow the courts to consider digital evidence on a case-by-case basis, developing jurisprudence on what constitutes sufficient evidence of testamentary intent in a digital context.
Crucially, the Law Commission also proposed that Parliament should create a power to legislate for a full system of electronic wills in the future, but only when sufficient technological and security solutions are in place (Law Commission, 2017, para 8.87). This staged approach was reiterated in its 2023 supplementary consultation, which confirmed its view that the law must be modernised but emphasised that "robust safeguards against fraud and undue influence" are an essential prerequisite for any new system of electronic wills (Law Commission, 2023). This approach wisely separates the immediate problem of informally executed wills (which a dispensing power would address) from the more complex project of creating a new, fully digital system.
Conclusion
The question of whether to recognise electronic wills pits the need for legal modernisation against the enduring requirement to protect testators at their most vulnerable. The Wills Act 1837 is undoubtedly a product of its time, and its paper-based requirements are ill-suited to a digital age. However, simply transposing the concept of a will into an electronic format without addressing the profound risks would be a mistake. The key functions served by the traditional formalities—particularly the protection against fraud and undue influence—cannot be easily replicated in a digital environment.
Therefore, the argument that electronic wills should be recognised under a modernised Wills Act requires careful qualification. The law should indeed be modernised, but not through a wholesale and immediate switch to electronic wills. The most prudent and effective reform would be the introduction of a dispensing power, as consistently recommended by the Law Commission. This would give courts the flexibility to recognise a testator’s clear intentions, including those expressed in an electronic format, without dismantling the protective framework of section 9. This would allow the law to evolve carefully, responding to individual cases of hardship while society and the legal system gain more experience with digital evidence. A fully fledged statutory scheme for electronic wills remains a valid long-term goal, but one that should only be pursued once technology can provide proven, robust safeguards that afford at least the same level of protection as the centuries-old, yet still vital, tradition of pen, paper, and physical presence.
References
Braun, A. (2020) 'The formal validity of wills: the digital challenge'. In: A. B. Crawford, G. Douglas, M. L. R. C. D. S. R. D. B. D. D. C. F. L. G. M. D. L. V. P. and E. S. W. (eds.) The Law of Succession. Cambridge University Press.
Fuller, L. L. (1941) 'Consideration and Form', Columbia Law Review, 41(5), pp. 799-824.
Langbein, J. H. (1975) 'Substantial Compliance with the Wills Act', Harvard Law Review, 88(3), pp. 489-531.
Law Commission. (2017) Making a Will. Consultation Paper No 231. <https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2017/08/cp231_making-a-will.pdf>
Law Commission. (2023) Modernising the Law of Wills: Supplementary Consultation Paper on a Dispensing Power. <https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/10/Modernising-the-law-of-wills-supplementary-consultation-paper.pdf>
Naidoo, R. (2017) 'Wills and social media: a question of capacity, form and content', International Review of Law, Computers & Technology, 31(3), pp-572-583.
Wills Act 1837.
Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, SI 2020/952.
