Wills : Is the legal recognition of Electronic Wills approaching?

The Law Commission, the body of legal policy experts who review the law of England and Wales, have recently undertaken their 12th Programme of Law Reform in reviewing Wills legislation. The consultations discuss the scope for Electronic Wills to be deemed as legally valid documents.

The current law on Wills

In an overview, for a Will to be a legally valid document, there are a number of elements which must be satisfied. This includes:

1. The testator (individual making the will) must usually be over 18 (unless serving in the armed forces)
2. The testator must have ‘testamentary capacity’ (primarily governed by the common law test set out in the famous court case Banks v Goodfellow and in the Mental Capacity Act 2005)
3. The testator must have the intention to create the will
4. The testator must know the contents of the will and approve them
5. The will must be in writing, signed by the testator (and their signature intended to give effect to the Will), the signature made or acknowledged by two or more witnesses’ present at the same time who also sign, in the presence of the testator (these are the formalities under section 9 of the Wills Act 1837).

The question posed in the 2017 Consultation Paper on Wills discusses the process of making Wills ‘fully electronic’. The process consists of…

1. Preparation
2. Execution
3. Storage

Most solicitors already prepare Wills using electronic means such as typing, emailing clients draft copies and printing the Will, rather than writing the Will by hand. The latter two stages are not yet electronically completed and the question remains whether they could, and should be?

Why is reform needed?

The formalities requirements under section 9 of the Wills Act have remained unchanged since the introduction of legislation in 1837 and many requirements originally derived from those in the Statute of Frauds 1677. The Wills Act came into effect when paper documents were the only type in existence. Now in 2025, electronic documents are increasingly accepted across a wide range of institutions. Paper documents are subsequently being used less frequently due to advancements in technology.

There are many issues faced with Wills only being legally valid documents if in paper form, such as

• Risk of loss, damage or destruction (i.e. fire, flooding)
• Risk of forgery or temperament (i.e. someone close to the testator such as family members, friends or carers who have access to the physical Will)
• Risk of invalidity – evidence to support due execution may be limited when a Will is contested and both the testator and witnesses’ are deceased
• Accessibility issues – those with mobility issues or living in rural areas may find the requirement for physical presence challenging (i.e. for consultations with legal professionals, or to sign the Will with two witnesses)
• Environmental burdens – deforestation and paper production, carbon emissions posting paper documentation and using physical storage facilities

Electronic Wills if introduced could be beneficial and may encourage more to create a Will, as a significant proportion of England and Wales do not.
Electronic Wills however could also pose risks which should be considered and mitigated against. The risk of undue influence or fraud remains present with Electronic Wills and testators may be less comfortable with using digital technology to execute their Will. There is also a risk that an Electronic Will could be hacked or tampered with after execution.

Will there be any change?

Presently, there is no change to legislation. The Law Commissions comprehensive report regarding the allowance of Electronic Wills to be legally valid based on the same basis as paper Will documents, will require detailed consideration by the government. Therefore, paper Wills will remain the only form of valid document for the foreseeable. However, there may be a choice for testators on the horizon to make a Will electronically.

How can we assist you in making a Will?

Having a properly drafted and executed Will is very important in providing peace of mind knowing that when you die, your assets and possessions (the estate) passes to the people or organisations (the beneficiaries) that you have chosen. Dying without a Will (intestate), can make things difficult for family members to sort out, and your estate will be shared in accordance with the rules of intestacy.

We can provide easy to understand advice regarding creation of your new Will, or updating your existing Will. Please get in touch if you would like an appointment to discuss your Will by calling on 01761 414646, email us on enquiries@th-law.co.uk or contact us through our website. We also offer a Free Legal Advice Surgery which takes place in our Midsomer Norton office every Thursday between 4:30pm – 6pm.