A piece of law dating from the beginning of Queen Victoria’s reign is an unlikely catalyst for a debate over how we apply modern technology to legal practices, but that is exactly what the Law Commission has given us with its recent consultation on the law concerning wills.
While the over-excited headline of one major publication – ‘Could a text become your will?’ – did not match its enthusiasm with its accuracy, the commission has raised important questions about using technology in setting down our wishes for after we pass away. These are, however, not new questions.
In December 2010, the Law Society’s Wills and Equity Committee joined forces with the Private Client Section to host an event on the future role that technology could play in the traditional world of will-making. The sell-out conference ‘Will making over the internet – can we or can’t we?’ brought together leading practitioners, academics, technology companies and the judiciary (in the form of Mr Justice Lewison – now Lord Justice Lewison) for a debate on the issues surrounding the use of online services by solicitors in the making of wills.
Much of the focus centred on legal liability and negligence in respect of a solicitors firm which prepares wills using an online service. The conference also looked at reputational risks to firms and the profession in offering such services, particularly online wills where technology is used in the preparation and drafting (the will is then printed and signed by the testator in the usual way and stored as a paper document).
Even in 2010, an increasing number of disputed will cases came before the courts. With disappointed beneficiaries increasingly challenging the validity of a will, the preparation of these documents was thrust into the spotlight. Validity issues arising from traditional face-to-face methods of taking will instructions would only be exacerbated by the faceless instructions of online will-making.
By moving to an online solution, the question arises as to what service the solicitor is actually providing to the client. They will no longer be acting as the break on improper behaviour, and will be unable to spot potential incapacity and requirements for a medical examination. There can be no certainty over a will’s due execution, or the testator’s knowledge and approval of the will. With little or no relevant information or evidence to give if a dispute arises, the provision of online wills becomes little more than a transcription service.
Most providers of online wills seek to turn the negatives into a positive. They restrict the duties owed to the client by limiting the terms of their client engagement by, for instance, not advising on: tax implications; assets passing outside of the will; foreign assets; the impact of changing family situations on the validity of the will; and the suitability of the dispositions chosen (and so on). They make it clear to clients that they are only supplying a basic will transcription service along with instructions on the execution of their will, excluding the need to check if the testator has not been influenced by anyone in answering the questions, or if they have sufficient mental capacity to make and execute a will.
Online wills are not for everyone. They are a clearly defined service where the solicitors firm explains to the client what they are paying for, and sets out alternative options for writing a will when the online method is not suitable. The outcome of the special event hosted by the Law Society confirmed that, while obvious risks were associated with the provision of online wills, nothing prevented solicitors firms from providing this service to clients.
So, for those of us who have been involved in this area for a while, the commission’s ‘Making a will’ consultation has a slight back-to-the-future feel to it. Aiming to reform the current Wills Act and outdated case law to encourage and facilitate will-making in the 21st century, the commission asks important questions on where the law might be updated to take account of developments in technology and medicine. It is a comprehensive review of the current legislation, touching on all the issues mentioned during the conference, and sets out proposals to make will-making more accessible for clients. They are clearly aware that the current Wills Act has survived 180 years, so the next one needs to be built to last.
This proposes to be a once-in-a generation review. It holds out the prospect not only of making wills using technology as an aid to making a paper will, but of electronic wills that never get printed and are stored only in digital format.
Technology is already widely used in most solicitors firms in the preparation and drafting of wills. Distance-selling regulations allow solicitors to act for clients they never meet in person.
Many of the firms at the 2010 conference were happy for clients to give instructions for their will via post or by telephone. A draft will would be prepared and sent to a client with instructions on how to execute it, before it was returned for checking. Technology meant that those early adopters progressed to online will instruction-taking; communicating with clients online, by email or video conference, rather than through the post or by telephone.
However, the risks of online will production identified in 2010 remain. The commission’s proposals acknowledge that the concerns raised about fraud and undue influence on testators are unresolved. The commission also accepts that technological solutions to solve those problems are not necessarily at hand.
What is clear, though, is that the answer to the ‘Will-making over the internet – can we or can’t we?’ debate will take a big step closer to ‘yes’ if a new Wills Act reflecting this thinking comes into force. Until that time, it is up to each solicitors firm to undertake a detailed risk assessment to decide if they are happy with moving to a faceless world of client interaction.
Ian Bond is chair of the Law Society’s Wills and Equity Committee
Private Client Section: elderly client care conference 2017 – 20 October
The Law Society, London
Our popular elderly client care conference is back for 2017, bringing comprehensive advice tailored to help private client practitioners. Topics include end of life care, the future of social care funding and mental health and wellbeing. We are delighted to announce that this year’s keynote address will be delivered by Dame Joan Bakewell.
Discount available for members of the Private Client Section