Proposals to introduce ‘digital’ Wills will increase the risk of fraud against elderly or vulnerable individuals, warns TWM Solicitors, a leading private wealth and family law firm.
The introduction of digital or electronic Wills is included in the Law Commission’s new recommendations to modernise the law around Wills.
David Lunn, Managing Associate at TWM Solicitors, explains that with an aging population and lower tech literacy among retirees, many of the individuals who will be offered this digital alternative could be considered vulnerable to the misuse of electronic Wills.
David Lunn highlights some of the key risks for Will-makers:
- Incidents of fraud and undue influence may increase, especially among vulnerable or cognitively impaired individuals
- Without face-to-face meetings, individuals are at greater risk of coercion or manipulation
- Lack of personal oversight might compromise authenticity of an individual’s final wishes
David Lunn comments: “The new electronic Wills proposals raise serious concerns. There are simply far too many people who will be put at risk.”
“As fraud in this area could impact an individual’s entire estate, significant sums of money would be at risk.”
“Just as in online banking, there will be high incidence of fraud amongst the elderly who are less familiar with online technology and basic security protocols, like keeping passwords confidential, or the risks of allowing someone else to control your account.”
“Digital Wills offer some practical benefits, but the proposed changes raise complex legal and ethical questions that must be addressed.”
“Ultimately, the legal industry may not yet be ready for such a drastic change to estate planning.”
What benefits would electronic Wills offer?
David Lunn explains: ”Digital Wills could improve accessibility and convenience. People could create and update Wills more easily, reducing administrative and logistical barriers. This could spur an increase in Will-making and reduce rates of intestacy (where people die without leaving a valid Will).”
It could also help ensure clearer estate planning. Frequent updates could also reflect personal changes more accurately over time. The hope is that the law would continue evolving to reflect technological progress and changing lifestyles.
What safeguards are needed to protect individuals and families?
The Law Commission recommends specific digital safeguards, including:
- Digital platforms must be secure
- Undertaking identity verification for all users
- Protecting documents from tampering or fraud (perhaps by restricting editing powers)
David Lunn says: ”In addition to these necessary technological steps, it is crucial that existing case law is not diluted in a way that weakens individuals’ rights. Preserving these legal protections will be vital to build trust in digital Will-making. Key rights include:
- Maintaining safeguards against undue influence under existing common law
- Ensuring that the test for testamentary capacity is clear. Currently, it is set out in the case of Banks v Goodfellow and the proposal is to replace that with the test set out in the Mental Capacity Act 2005. There is considerable case law which has built up around the existing test and moving to a new one would leave in doubt the extent to which the existing body of judgements remains good law.
David Lunn adds: “The Law Commission is trying to modernise Will-making, so it’s good to see it stressing the need for balanced reform.”
“If we want to modernise the Will-making process, then robust safeguards are essential for protecting individuals’ intent and autonomy – remember that although the elderly of today may be at greater risk of exploitation through the use of technology, the elderly of tomorrow will have grown up with it so the question is not only whether the Law Commission’s recommendations are a good idea in principle – it is also about when the time would be right to implement them.”
“Digital convenience should never come at the cost of legal clarity and fairness.”
