25th July 2017
Electronic communication: valid reflection of intention in your Will?
Discover the interesting debate about the Law Commission’s proposal to update the law on Wills to recognise electronic communications as a valid intention
The Law Commission’s proposal to update the law on Wills to recognise electronic communications as a valid intention has provoked an interesting and controversial debate.
In my opinion, your Will should be executed with due care, attention and thought. The formal process of signing and dating a Will by a testator or testatrix in the presence of two independent witnesses, whilst complex, is designed to achieve just that. To ensure that this has been done independently and not under any fraud, undue influence or duress, it is best practice for it to be executed in the presence of your solicitor at their offices.
To allow Wills to be executed through electronic communication may create problems in ensuring the equivalent safeguard, particularly in light of the cyber crime wave that has recently hit many organisations such as the NHS. How can we protect against fraud and how do we differentiate between old and new wishes transmitted via electronic communications?
As solicitors in the Private Client team at Buss Murton Law, we see how email exchanges of draft Wills can result in solicitors and clients alike frequently missing or forgetting to properly check or read clauses. Hastily reading them on a screen is not as effective as having a hard proof draft which is carefully read and can be marked with amendments more clearly.
In a world where technological advancement is faster than the rate of adaptation to it, we all need to make sure that we understand the importance of having a Will, which clearly expresses our wishes upon death. Currently 40% of the UK population dies without having made a Will and even more face issues later in life with capacity and making arrangements.
With the above in mind, whilst the Law Commission is trying to keep up with recent changes, it is imperative to address the fundamentals first, i.e. having the right Will and encouraging more people to make a Will in the first place before we think about changing the method of execution of it. Otherwise we may face more issues relating to the validity of the Wills in probate and in court proceedings.