The Ministry of Justice ('the MoJ') released their consultation paper on 15 December 2023 ('the Paper'), challenging the current system surrounding Wills and igniting a pivotal discussion on the future storage and retention of Wills and other testamentary documents. The MoJ released 12 key questions in the Paper, requesting suggestions for reformation. W Legal's Digital Assets Team responded to the MoJ's questions, advocating broader technological and digital considerations to ensure the integrity and accessibility of Will documentation in the digital age.
Inspection
The Paper highlighted the rationale behind the public inspection of Wills, namely, to identify beneficiaries, to be used as evidentiary support towards a claim, to challenge the validity of a Will, and to hold executors and trustees accountable, ensuring that a testator's intentions have been complied with. Whilst existing measures such as 'letters of wishes' can be utilised as well as the right to 'seal' a Will if 'such inspection would be undesirable or inappropriate', no clear formal guidelines have been implemented in this regard.
W Legal invited the MoJ to consider introducing clearer guidelines on the requirements to seal a Will rather than deciding on these from a discretionary and case-by-case basis. W Legal also emphasised the need for confidentiality, providing technological solutions involving blockchain technologies and new internet protocols which could enable automated inspection rights to be programmed onto each Will and the system overall.
Retention
Currently, there is no set time limit on the duration that courts hold original Wills. It is often the case that they hold them long beyond the period during which challenges could reasonably arise. HM Courts and Tribunals Service currently hold original Wills dating back to 1858, indicating a significant archive. Therefore, the MoJ have considered implementing a new system for digital Wills with the view that a digital Will should have the equivalent capacity to a paper Will in establishing the intention of a testator. Recognising the historical and sentimental value associated with probate and the creation of a permanent digital record, the MoJ proposed a 25-year retention period for original Wills.
W Legal highlighted that there are certain instances where we would expect courts to retain original Will documents, such as where there is already in place or anticipated litigation concerning the Will or estate. This is especially in circumstances where the physical characteristics of the Will, such as signatures, stamps, and other marks, can be crucial evidence in legal proceedings and would need to be examined by a forensic document examiner and therefore we suggested a longer retention period of 50 years, but overall, we agreed with the MoJ's approach.
If the MoJ successfully implement a digital Wills system, the Digital Assets Team anticipates that Blockchain-Wills will, in due course, be legally established and streamlined, which would enable authentication through blockchain mechanisms by a testator and witnesses. The physical elements of a Will would no longer be necessary. W Legal had future-looking discussions with various Blockchain firms exploring concepts such as Smart Contracts and
Zero Knowledge based Blockchain-Wills, which could introduce the possibility of a fully digital registry, enabling citizens to create and manage their Wills with greater reliably.
Preservation
The preservation of original Wills of famous individuals presents a unique challenge for the MoJ, prompting their suggestion that a further, more targeted, consultation would need to be opened on this topic. Whilst their overarching aim is to implement a general system for digitising original Wills, exceptions would likely arise in circumstances where there is a national interest in preserving the original Will for historic or academic purposes. The MoJ requested wider views on the system that should be adopted when identifying Wills that are to be preserved permanently.
The Digital Assets Team suggested that it would be most appropriate for Wills of famous or historic individuals with an academic purpose to be stored in museums, libraries, exhibitions or galleries—an approach already practiced by many institutions. We also proposed the idea of future investment opportunities such as Non-Fungible Tokens containing Wills of famous individuals which could evolve into valuable collectibles in their own right. Notwithstanding these avenues, we highlighted that the MoJ must consider mechanisms to ensure the accessibility and preservation of Wills from a diverse range of individuals, irrespective of fame. The threshold as to who is to be considered 'famous' will likely be discussed further in the MoJ's future consultation, which we look forward to reviewing.
David Ellis, Senior Consultant at W Legal Limited and a member of the Digital Assets Team, stated that "our engagement with the Ministry of Justice's consultation marks a pivotal moment in addressing the impact of digital record keeping and the evolution of digital Wills which we envisage will come to replace the long-established paper Wills procedures in time. For the present, interesting issues are being considered as to how and when paper Wills can be replaced by digital/scanned Wills and the use of digital electronic signatures as well as whether some paper Wills have intrinsic historic value and should be retained".
W Legal eagerly awaits the MoJ's forthcoming report, expected in Summer 2024, summarising all responses to the Paper. To read the Paper click here and email info@wlegal.co.uk if you would like to read our response to the Paper.
It is important to stay updated on the latest developments, as governments, international organisations, and industry stakeholders continue to explore and establish legal frameworks to address the ethical, privacy, safety, and accountability concerns associated with AI and please do contact the Digital Assets Team at W Legal to follow up in this area and related areas and we will be happy to discuss, review and oer training in these fast developing regulatory and compliance areas.
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