Has Black Mirror predicted the future for wills?

Should a person’s intentions, if recorded on video, be allowed to represent their testamentary intentions?

We are currently in a world whereby technology is rapidly changing and advancing, specifically in terms of AI. Although AI has historically been something explored in tv and film, we are now very much at the stage where it is becoming a real part of everyday life, and as such is being utilised throughout the legal industry.

A recent episode of the Netflix show “Black Mirror” has explored the idea of a world where a eulogy is written by using AI to enter into photographs of the deceased person, in order to understand the history of their life.  Although there is a certain amount of creative freedom involved (not to mention technology that does not yet exist), it does beg the question as to whether technology can be utilised to assist after a person has died.

This is specifically a topic to consider in reference to a person’s testamentary wishes, especially in jurisdictions, such as England and Wales, where a person has testamentary freedom to  leave their assets however they wish.

As things stand currently, a Will can only be validly executed in England and Wales if it is executed according to section 9 of the Wills Act 1837. As you can imagine, statute written in the 1800s did not therefore account for a world of computers and mobile phones, meaning that currently, a Will is only valid where:

– The Will is in writing, and signed by the person who has died (or at their direction);

– The person who has died intended to give effect to the Will by signing it;

– The signature was made or acknowledged by that person in the presence of two witnesses, present at the same time; and

– Each witness has signed (or acknowledged their signature) in the presence of that person.

This is a relatively stringent piece of legislation, and often means that where a person’s wishes are clear, but a Will has not been executed properly, such Will remains invalid. This also currently means that e-signatures on say, a digital copy of a Will, would also be invalid.

It is currently the case in England and Wales that the Court does have a certain power to rectify a Will, where it has not been properly executed. However, this is currently a relatively limited power and often only occurs where there has been a clerical error, or a comprehension of instructions from the testator. The Court is therefore unlikely to be able to rectify a digital Will in order to make it valid. 

The question for the future is, with such fast advancements in technology, will electronic, or video recorded, Wills become the norm as opposed to written, printed Wills?

It is suggested that the answer may be yes. In the much anticipated recent Law Commission Report, there is a suggestion that provision should be made for electronic Wills to be valid in England and Wales, meaning that a person could execute a valid Will using their computer or phone.  

There is of course a lot to be considered in reference to electronic Wills. Such Wills would be open to scrutiny over how capacity would be assessed and the ease of undue influence in such cases where a person creates a home-made electronic Will (although this is arguably the case as the law stands currently).  

An extremely important consideration however would be proving that the person who executed the Will actually did so themselves – would witnesses still be needed if there was a digital footprint of the person creating a Will on say, a phone that required facial recognition?  There is a significant amount to consider here in terms of fraudulently executed Wills, and in a world where the older generation are often the targets of digital scams, there would need to be stringent policies in place to protect those vulnerable to such scams. Technologies such as blockchain may be utilised in these circumstances, as certain firms are already using for transactions such as conveyancing.

The report also suggests that the Court should have power to dispense with the formalities of section 9 of the Wills Act 1837, after the Deceased has passed away. This could be based on notes written by the testator, or a document intended to be a will showing their testamentary intentions, but not properly executed. It is important to note however that this would only be in the case that it could be demonstrated that the person’s intentions continued up to their death, however could theoretically allow an electronic will of some sort to be valid.  

Other jurisdictions have already in fact begun to recognise the changes in technology in terms of Wills and probate.

The case of Re Estate of Quinn 22 ITELR 165 in Australia has shown the importance that can be placed on a recorded video of the testator in their lifetime. In this case, the testator made a video that expressed to be his Will. After his passing, his wife accessed a copy of this recording on his computer. It was found that the intention was that the recording on his iPhone was to operate as his Will. The video was dated, and he had shown it to his wife after recording it. As there was no evidence that he had changed his mind before his death, the Court used their  dispensing powers to confirm that the Will was in fact valid.  

The USA has also brought in the Uniform Electronic Wills Act in July 2019, which allows the execution of a valid will online.   

Even in England and Wales, there are now a significant amount of documents which are validly executed by being signed electronically, under the Electronic Communications Act 2000.

It seems that many legal documents are now moving in line with technological advancements, whilst other jurisdictions have already begun to do so, specifically in the area of Wills. Could England and Wales be the next jurisdiction to do so?

By Katie Entwisle, IDR Solicitor