‘Face to face with online’

On the 13thJuly we set out the BBC report 

The law around wills should be updated and brought into the “modern world”, the Law Commission for England and Wales has said

The question of Will making over the internet continues to roll on…… 

On the 7th August Ian Bond who is the chair of the Law Society’s Wills and Equity Committee wrote an article in the Law Gazette stating the following: –

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.

Improper behaviour

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.

Undue influence

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.

What do we think?  

Our thoughts on this remain the same in that we agree that the laws for making a Will are outdated with legislation still in force from 1837, although the statute has been amended through the years. The bones of the legislation still remain the same as those introduced back in 1837. 

We agree that the legislation should be updated and brought into the modern era but we have concerns that the use of electronic communications may be a step too far. As we said previously where are the protections. How do we know that the electronic communication is from the individual concerned, how do we protect individuals from undue influence, fraud and coercion? How do we know the individual has the mental capacity to construct the electronic communication and is making a reasoned decision? What is the definition of exceptional circumstances? What we have here is more questions than answers. 

We are all for using modern technology to take client instructions, using skype, facetime, what’s app video calling, etc. Technology that allows us to see the client and to see the environment they are in, who is in the room, who could be asserting undue influence, etc. To simply take instructions online, on the telephone or by post without ever seeing the client could lead to trouble down the line, particularly as we live in a litigious society these days.     

We think the Law Commission would be better placed looking at regulating Will writing and updating the legislation to reflect modern living including cohabitation and family dynamics. 

For further information or to discuss any of these issues please email Rebecca Bristow at rb@startpointlaw.co.uk or telephone her on 01548 288008.