Given the pace at which technology has reshaped almost every aspect of our lives, it is hardly surprising that the law governing wills, still rooted in the Wills Act 1837, is under scrutiny. In his article, Andy Hitchon, Head of LEAP Estates, analyses whether digitalisation will strengthen testamentary freedom or create new vulnerabilities.
For a new generation of digital natives accustomed to signing contracts digitally and managing complex affairs from a smartphone, the idea that a will must be signed with wet ink, in the physical presence of witnesses, can feel outdated. It is against this backdrop that the Law Commission has recently been reviewing the law of wills, with proposals aimed at bringing it into the digital age. The Commission’s work, set out in its consultation and subsequent reports. At a very top level, the proposals set out to allow wills to be created, signed and stored electronically; permit remote witnessing through videoconference; lower the will-making age from 18 to 16; offer greater recognition to digital assets; and align the test for testamentary capacity with the Mental Capacity Act 2005 rather than relying on the 19th-century case of Banks v Goodfellow.
Taken at face value, these changes promise accessibility, convenience and relevance. But as someone who works daily with clients at all stages of life, I would approach electronic wills with both optimism and caution.
The clear advantages to will reform
One of the persistent challenges within private client practice is engagement: many people delay making a will, sometimes until it is too late. The most common blockers and barriers include cost, lack of time, mobility issues and anxiety about formal legal environments. Digital processes have the potential to reduce these barriers and help clients who are housebound, live abroad, or simply feel more comfortable in their own surroundings. In such cases, electronic drafting tools can streamline the process and reduce administrative delays.
Aligning testamentary capacity with the Mental Capacity Act 2005 is also, in principle, sensible. The Act provides a functional, decision-specific test that is familiar to practitioners across many areas of law and healthcare. By contrast, Banks v Goodfellow dates from 1870, a time when medical understanding of capacity was rudimentary by today’s standards.
The possible risks introduced by electronic wills
The act of making a will is not merely administrative; it is deeply personal and, in many cases, emotionally charged, often leading to risks of coercion, undue influence and vulnerability.
While these risks are not new – allegations of undue influence have always been a feature of contentious probate – what is of concern is that a fully digital process may increase the opportunity for improper pressure while simultaneously making it harder to detect.
Validity of the testator’s intentions
For it to be valid, a will must reflect the testator’s true intentions. In a traditional setting, the solicitor can see who accompanies the client, who waits outside the room, and how the client behaves when sensitive questions are asked. But if everything takes place via a screen, how can we be certain the testator is truly alone? Even if testators are asked to perform a 360-degree room verification, someone could be sitting just out of view, exerting subtle or overt pressure.
Remote witnessing compounds this concern, and while video witnessing proved a pragmatic solution during the COVID-19 pandemic, it was never intended as a permanent replacement for physical presence. Making it the norm requires a much higher level of confidence in safeguards and audit trails.
Heightened risk for vulnerable clients
Some of the most important will-drafting conversations occur face-to-face. Capacity is not always obvious, particularly in situations with fluctuating conditions, early-stage cognitive impairment or complex family dynamics. Assessing understanding, memory and independence of thought can take time, and a digital-first approach risks oversimplifying that assessment.
Vulnerable clients may be more easily coached, less likely to ask questions and more inclined to defer to others when interacting through technology. Organisations such as Age UK have long highlighted the risks of financial abuse of older people, often by those close to them.
Any reform must take this reality seriously; while digital tools can assist, they are not a substitute for professional judgement.
Potential for abuse of technology
We are entering an era where technology can convincingly imitate reality. Deepfake videos, AI-generated voices and manipulated images are no longer theoretical risks, and the potential for misuse in a testamentary context is obvious. Could false “instructions” be presented as genuine? Could a video be fabricated to suggest capacity or consent where none existed?
While these scenarios may sound extreme, the pace of technological development suggests they cannot be ignored, so robust verification processes will be essential in the digital era.
Forgery, storage and cyber risk
The use of electronic signatures has been ingrained in private client practice for years, but their reliability depends on the underlying systems. Without stringent digital safeguards, there is a risk of forged signatures or unauthorised access.
Equally important is storage. A will is only effective if it can be located, verified, and trusted after the testator’s death. Secure, regulated storage – akin to the Land Registry’s approach to title documents – would be vital.
Issues such as encryption, multi-factor authentication, audit logs, and protection against cyber-attacks must be addressed head-on. The National Cyber Security Centre provides useful guidance on data security standards that could inform this area.
Reduction of testamentary age
The proposal to reduce the age of testamentary capacity raises broader questions. While there are limited circumstances in which individuals under 18 can already create a will, extending this generally to 16-year-olds is a significant step.
At 16, many aspects of life remain restricted – property ownership and marriage, to mention a few. As young people’s circumstances change rapidly, a will made so early in life may be unintentionally revoked, forgotten or rendered inappropriate, leading to a substantial risk of creating documents that are technically valid but practically unsuitable.
How private client law firms and practitioners can mitigate the risks
These concerns don’t necessarily mean that electronic wills should be dismissed outright. Rather, they underline the need for careful design, professional oversight and a gradual transition. Private client firms and practitioners can take steps to mitigate the risks associated with digital will writing and act in the best interest of their clients.
In a digital context, for instance, detailed attendance notes become even more critical, as every stage of the process should record not just what was decided, but how and why.
Legal software purpose-built for estate management can help by incorporating prompts and checkpoints, such as confirming who is present, testing understanding, verifying identity through facial recognition or secure ID checks, and explicitly addressing issues of free will and pressure. Used properly, technology can enhance (not replace) professional judgement.
For more complex or unusual wills, clients should be prompted to seek independent legal advice or medical confirmation of capacity. This best practice is already in place and should remain non-negotiable under new regulations.
A centralised, regulated storage system with transparent access records would provide confidence, while still allowing clients to retain hard copies if they wish.
Lastly, in-person methods should remain accessible to those who are not digitally confident, as inclusivity should be at the forefront of reform.
Like any legal reform, the success of electronic wills is heavily dependent on implementation. If done well, they could improve access and align the law with contemporary life. If done badly, they risk exposing the very people the law is meant to protect. Any move towards electronic wills should be phased, carefully monitored and supported by clear guidance for practitioners and the public alike.
The role of practitioners is to embrace innovation while remaining vigilant. Testamentary freedom is a cornerstone of our legal system, and preserving it in a digital age requires a renewed commitment to professional judgement, ethical standards and client care.
Andy Hitchon is Head of LEAP Estates. He is a recognised Private Client and Trusts specialist with over a decade of experience, previously a Partner at Rothera Bray LLP and also head of the Wills & Estates department at Bray & Bray prior to its merger with Rotheras. As Head of Estates at LEAP Legal Software, Andy leverages his deep knowledge of estate administration, trusts, and tax planning to help firms modernise their private client practices through smarter technology.
Photo by LEAP.
