From Ink Quills to Digital Wills - The Pros and Cons of Dragging Will Drafting into the 21st Century

Wills are changing.  The Law Commission’s 2025 report, Modernising Wills Law, proposes a seismic shift in testamentary practice: the formal recognition of electronic (digital) wills. This reform aims to align the law with technological realities, improve accessibility, and reduce barriers to will-making. However, from a contentious probate perspective, the implications are profound. While digital wills promise convenience and inclusivity, they also introduce new risks of fraud, undue influence, and evidential uncertainty - issues that lie at the heart of probate litigation.  Here we examine the advantages and disadvantages of digital wills, considering how they might reshape contentious probate disputes if implemented under the Law Commission’s recommendations.

There is an argument that if legislation has not changed for almost 200 years, it must be working.  

Under section 9 of the Wills Act 1837, a valid will must be:

• In writing.
• Signed by the testator (or by someone else at their direction and in their presence).
• Signed in the joint presence of two witnesses, who also sign in the testator’s presence.

These formalities have served as safeguards against fraud and undue influence for nearly two centuries.   However, they leave no room for digital alternatives. Even during the Covid pandemic, temporary regulations allowed remote witnessing via video link, but the will still had to be printed and physically signed. Those regulations expired in January 2024.

The Law Commission now recommends:

• Recognition of electronic wills, provided they meet formality requirements and additional digital security standards.
• Use of a “reliable system” to verify identity, prevent unauthorised alteration, and distinguish originals from copies.
• Allowing remote witnessing via video transmission.
• A draft bill granting government power to regulate technical details (e.g., electronic signatures, secure storage, revocation).

1. Accessibility and Convenience

Digital wills could make will-making easier for:

• Housebound individuals, those in care homes, or with mobility issues.
• People in urgent medical situations or living abroad.
• Testators with significant digital assets who prefer online processes.

This inclusivity supports testamentary freedom, reducing the number of people who die intestate. It also reflects modern expectations - most legal and financial transactions are now digital.

2. Reduced Technical Challenges

Currently, many disputes arise from technical non-compliance (e.g., missing witness signatures, the witnesses not being present at the same time). Allowing courts to dispense with strict formalities where the testator’s intention is clear could reduce litigation based on procedural defects.

3. Potential for Enhanced Security

Digital systems can incorporate:

• Identity verification (biometrics, two-factor authentication).
• Tamper-proof storage .
• Audit trails showing when and by whom the will was accessed or amended.

Such features could strengthen evidential certainty compared to paper wills, which can be lost, destroyed, or forged. 

4. Cost Efficiency

Electronic execution may reduce costs associated with:

• Printing and physical storage.
• Travel for witnesses or solicitors.
• Urgent applications for statutory wills in hospitals.

Lower costs could encourage more people to make wills, reducing intestacy disputes. 

5. Adaptability for Digital Assets

Modern estates often include cryptocurrencies, social media accounts, and online subscriptions. Digital wills could integrate mechanisms for managing these assets more effectively, reducing ambiguity and disputes over ownership.

1. Increased Risk of Fraud and Cybersecurity Breaches

Electronic documents are vulnerable to:

• Hacking and unauthorised alterations.
• Identity theft or impersonation.
• Loss of data due to system failures.

Unlike physical wills, which provide tangible evidence, digital wills rely on technological integrity. A single breach could invalidate a will or lead to competing versions. 

2. Greater Scope for Undue Influence

Remote execution may occur without a solicitor present, making it far harder to detect coercion.  The involvement and presence of a solicitor has safeguarded the will making process for centuries.  Vulnerable testators could be manipulated during video witnessing, especially if others are off-camera. This raises evidential challenges in proving undue influence - common ground for contentious probate claims. 

3. Evidential Complexity in Litigation

Disputes may shift from handwriting analysis to:

• Digital forensics (IP addresses, metadata).
• Authentication of electronic signatures.
• Examination of system reliability.

This increases litigation costs and requires specialist IT evidence, adding complexity to probate disputes. 

4. Fragmentation and Uncertainty

If electronic wills are introduced without a mandatory registration system, multiple versions could circulate. Determining which version is authoritative may become contentious, especially if updates are frequent or poorly documented. 

5. Potential Increase in Litigation

While reforms aim to reduce disputes over technical defects, they may increase challenges based on capacity, undue influence, and authenticity. For example:

• Was the testator alone during video witnessing?
• Did they understand the digital process?
• Was the platform secure?

These questions could lead to more - not fewer - probate claims. 

6. Digital Exclusion

Older or less tech-savvy individuals may struggle with electronic systems, creating inequality. If paper wills remain valid, dual systems could cause confusion and inconsistent practices. 

Whilst traditional claims – such as lack of due execution - may decline, but:

• Capacity disputes will persist, especially as the Law Commission proposes adopting the Mental Capacity Act 2005 test.
• Undue influence and fraudulent calumny may become harder to detect without in-person safeguards.
• Technical challenges will focus on system reliability and compliance with digital security standards.

Disputes are likely to mean great expertise in digital evidence, access to forensic IT specialists and an understanding of encryption, blockchain, and audit trails.

This could increase costs and lengthen proceedings, contrary to the aim of streamlining probate. 

Ultimately, it will be for Parliament to decide (and judges to implement) the legislation.  With such a seismic shift, this will be no easy undertaking.  

To mitigate risks, it maybe necessary to introduce the following:

• Mandatory identity verification using biometrics.
• Secure storage platforms with encryption and audit trails.
• Optional registration system for authoritative versions.
• Professional oversight - solicitors should remain involved in complex estates.
• Clear protocols for remote witnessing, including recording sessions and confirming who is present.

These measures could reduce fraud and evidential uncertainty, but they require robust regulation and industry training. 

Digital wills represent a necessary evolution in testamentary law, reflecting societal reliance on technology and lessons from the pandemic. They promise accessibility, convenience, and potential security benefits. However, from a contentious probate perspective, they introduce significant challenges: cybersecurity risks, evidential complexity, and heightened potential for undue influence.  If implemented under the Law Commission’s recommendations, practitioners must adapt quickly - developing IT literacy, revising risk management strategies, and preparing for a new era of probate litigation. Ultimately, whether digital wills reduce or increase disputes will depend on the robustness of safeguards and the willingness of courts and practitioners to embrace technological change without compromising the protection of vulnerable testators. 

If you require any further information about a challenge to a Will please contact Noel McNicholas on 01926 887700 or noel.mcnicholas@thomasflavell.co.uk