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The growing problem of digital wills

The law governing wills hasn’t caught up with digital developments, which means there are several risks facing legacy fundraisers. Here are some of the things fundraisers should consider when engaging with digital will writers...

Legacy fundraisers are tasked with encouraging and supporting people to include a charity in their will. It is a vital role, without which many charities wouldn’t be able to do their important work. And as over half of adults in the UK fail to write a will, anything that can help encourage more people to leave wills, and hopefully include a gift to a charity, is beneficial.

Making wills easier to write with technology seems, therefore, a positive move. However, when the law governing wills hasn’t caught up with new developments, there are also risks. So how do we balance eagerness to raise more money for our good causes with the potential risks involved in digital wills?

At the Institute of Legacy Management (ILM), we considered this balance when responding to the recent Law Commission consultation on wills. Some of these insights are shared below, along with advice for legacy fundraisers on how they can ensure the will-making process is as robust as possible, and the gifts they have so carefully generated remain valid at the time of the donor’s death.

The law

The act that currently governs wills in the UK is the Wills Act which was first established in 1837. The Law Commission recently consulted on reforming the law of wills as it sees a need to update the act and take account of changes within society. ILM wanted to ensure that its members' views and concerns were put forward, so we responded to the consultation on their behalf following discussions with them.

A major concern for ILM was the lack of clarity around the impact of digital wills, which our members tell us is an issue that they are encountering more and more.

Digital dilemmas

There are a range of benefits of digital wills. If more people are inspired to write wills more easily, the potential additional income this could bring charities – who currently receive £2.5 billion a year from gifts left in wills – is enormous.

However, there are currently no laws in place to deal with the growing issue of digital wills – although this does not mean, of course, that it isn't happening. Recently a court in Australia accepted an unsent text message as a deceased man's last will and testament (UK law has a way to go to catch up with this). Abd with a growing number of us becoming increasingly reliant on technology, more and more people are drafting wills using electronic means. This can open up a number of issues – and could potentially end up leaving a person's will open to being challenged and, ultimately, overturned.

Our charity members tell us this is already causing them problems, with poorly made online wills meaning donors' final wishes can fail – which can of course negatively impact on these charities and their beneficiaries. Charities are also concerned about the added complexity around how you can prove a digital will hasn't been fraudulently made or sent.

One legacy administration manager told us: "I am personally very worried about the potential for increase in fraudulent activity (and thus dealing with an increase in contentious matters for us legacy administration staff) if the market in electronic wills continues to grow. Safeguards need to be put in place as soon as possible."

Skipping over the issues

So why isn’t this discussion taking place now? There is certainly a feeling among our members that the Law Commission has simply ‘skipped over’ this issue with its recent consultation, and perhaps digital will writing requires another consultation all of its own. Our members are seeing these issues now, and a debate around the problems this can lead to can't come soon enough. One of our members said: ‘In reality, we have to deal with this issue of digital wills now, people want them. But if these wills don’t stand up, they’re useless.’

This is why our submission to the Law Commission's consultation urged them to give more timely consideration to the issues around digital will writing as a matter of urgency. The law needs to catch up more quickly with the ever-changing ways in which people want to write their wills.

We think that ultimately digital wills should be embraced if it means more people will be encouraged to write their will – but there need to be safeguards and regulations in place to make sure that these wills are legally robust.

Minimising the risks

So how do we encourage more people to write wills – and hopefully leave a gift to charity – while making sure that the safeguarding processes remain in place? When engaging with providers of will-writing products, here are some of the things that fundraisers may wish to consider:

  • The extent to which the supplier is formally regulated (e.g. through the Solicitors Regulation Authority) or has a voluntary code of conduct, practice or guidelines in place
  • How the process complies with and incorporates the legal formalities of will writing, thus minimising the likelihood of the will failing at a future date
  • What ‘checks and balances’ there are in place to highlight complex estates, drafting issues, and so on. Most online will-writing platforms can only cope with more basic and straightforward wills
  • What means of redress exist should something go wrong, both for those having their wills drafted and organisations commissioning such services
  • What insurance the supplier has in place to cover things going wrong.  All solicitors have to have professional indemnity insurance in place as a matter of course
  • How the supplier has addressed issues such as capacity and approval – formalities which have historically been dealt with as part of a face-to-face will-writing process

The Institute of Legacy Management will continue to press the Law Commission for greater clarity on any future changes to the law on wills, in particular around the impact of technology, and when these changes might be expected. We also want to promote and encourage more discussion on the potential impact of technology on will writing and legacy giving, to give greater clarity to charities but also to make the most of the opportunities presented by technology.

Chris Millward, Chief Executive of the Institute of Legacy Management

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