Skip to main content
WUHLD
← Back to insights

Electronic Wills Implementation: Law Commission Draft Bill and Technical Safeguards

· 21 min

Executive Summary

The Law Commission's Modernising Wills report, published in May 2025, proposes a draft Bill to replace the Wills Act 1837 with a framework permitting electronic wills executed through a "reliable system." The draft Bill establishes technology-agnostic functional requirements covering authenticity, security, and integrity rather than mandating specific platforms. As of February 2026, the government has welcomed these recommendations but confirmed no legislative timetable, creating a preparatory imperative for legal practices. This article provides a technical implementation analysis for solicitors and compliance specialists, mapping the draft Bill's "reliable system" requirements to the UK eIDAS electronic signature framework as amended by the Data (Use and Access) Act 2025. It examines remote witnessing provisions, evaluates fraud and undue influence risks in digital execution environments, and proposes a staged readiness framework for firms navigating the transition from paper-based to electronic testamentary processes.

1. Introduction

The Wills Act 1837 has governed testamentary formalities in England and Wales for nearly two centuries.1 Its requirement for a physical signature attested by two witnesses present at the same time reflects an era in which paper documents represented the only credible medium for recording testamentary intentions. The Law Commission's Modernising Wills report, published on 16 May 2025, represents the first comprehensive review of this framework, containing 31 recommendations and a draft Bill for a new Wills Act.2

Central to the proposed reforms is the introduction of electronic wills, executed through what the draft Bill terms a "reliable system."3 This concept, deliberately technology-agnostic, establishes functional outcomes rather than prescribing specific technologies. The draft Bill also introduces provisions for remote witnessing via "visual transmission" and a judicial dispensing power modelled on Australian and New Zealand precedents.4

The government's response, published alongside the report in May 2025, welcomed the recommendations but offered no commitment to a legislative timetable.5 Under the Lord Chancellor-Law Commission Protocol, an interim government response was due by November 2025; as of February 2026, no interim response appears to have been published, a delay the Law Society publicly criticised as demonstrating a lack of urgency on wills reform.6 A full government response is expected by May 2026 under the same Protocol. Primary legislation has not been introduced to Parliament, and the existing Wills Act 1837 remains the governing statute. The draft Bill applies to England and Wales only; Scotland and Northern Ireland maintain separate succession law frameworks and are not within the scope of these proposals.2

This legislative uncertainty creates a paradox for practice management. Firms that wait for enactment risk being operationally unprepared when legislation passes. Firms that invest prematurely in electronic capabilities risk deploying systems that do not meet eventual regulatory standards. The Law Society's survey of 895 solicitors during the supplementary consultation revealed a profession evenly divided, with approximately 50% supporting technological innovation in will-writing while expressing legitimate concerns about fraud and undue influence.7

This article addresses that tension directly, providing a technical analysis of the draft Bill's requirements and a risk-based framework for staged implementation planning.

2. The "Reliable System" Framework

2.1 Three Functional Requirements

The draft Bill does not define "reliable system" through a checklist of technologies. Instead, it establishes three functional outcomes that any system must achieve.3 These form the architectural foundation for any electronic wills implementation.

Authenticity requires that the system reliably links each signatory to their signature and verifies the identity of the person executing the will. The system must provide assurance that the individual purporting to sign is, in fact, the testator or witness they claim to be. This extends beyond a simple password or PIN to encompass identity verification mechanisms capable of withstanding challenge in contentious probate proceedings. The evidential burden falls on the proponent of the will to demonstrate that the system's identity verification was sufficient, making the choice of authentication technology a matter of direct professional risk.

Security demands that the system protects the will against fraud, coercion, and unauthorised interference throughout the execution process. This encompasses both the moment of execution and the transmission of the document between parties during remote witnessing. The draft Bill recognises that electronic environments introduce novel vectors for undue influence that physical presence might otherwise mitigate. Security requirements extend to the communication channels used during execution; an unencrypted video call or an insecure document transfer mechanism would undermine the system's overall reliability regardless of the strength of other components.

Integrity requires that the system renders any subsequent alteration detectable. The electronic will must be distinguishable from a copy, and any modification following execution must be evident to any party inspecting the document. This mirrors the physical will's reliance on the original document's tangible uniqueness but demands technological equivalents. The distinction between "original" and "copy" in a digital context represents a conceptual challenge: unlike paper, digital files can be duplicated with perfect fidelity, making metadata and cryptographic markers essential to establishing provenance.

2.2 Technology-Agnostic Design: Implications for Practice

The Law Commission's deliberate avoidance of prescriptive technology standards reflects a pragmatic recognition that digital capabilities evolve faster than legislation.2 The draft Bill anticipates that the Secretary of State will make regulations specifying detailed "reliable system" standards, allowing technical requirements to be updated without primary legislation.

This approach creates both flexibility and uncertainty. Practitioners cannot currently confirm whether a particular platform or combination of technologies will satisfy eventual regulatory standards. The draft Bill's explanatory notes indicate that technologies such as advanced electronic signatures, biometric verification, and cryptographic hashing could individually or collectively satisfy the functional requirements, but none is mandated.

For compliance specialists, the practical consequence is that internal standards must be developed based on reasonable interpretation of the functional requirements, subject to revision when secondary legislation is made. Firms adopting electronic capabilities during this interim period bear the risk that their chosen systems may require modification. The absence of announced consultations on secondary legislation, as of February 2026, reinforces the need for technology choices that are modular and adaptable rather than locked into proprietary architectures.

2.3 Mapping to UK eIDAS Signature Tiers

The existing UK eIDAS framework, as amended by the Data (Use and Access) Act 2025, provides the most directly relevant regulatory infrastructure for electronic signatures in a testamentary context.89 The Data (Use and Access) Act 2025 received Royal Assent on 19 June 2025, with Section 134 amendments to the trust services framework taking effect on 20 August 2025, ensuring the continued effectiveness of the UK's electronic identification and trust services regime.9 UK eIDAS recognises three tiers of electronic signatures, each offering progressively greater evidential weight.

Simple electronic signatures encompass any data in electronic form attached to or logically associated with other electronic data, used by the signatory to sign. A typed name or a scanned image of a handwritten signature qualifies. While legally admissible, simple electronic signatures offer minimal identity assurance and would likely be insufficient to satisfy the "reliable system" authenticity requirement.

Advanced electronic signatures (AES) must be uniquely linked to the signatory, capable of identifying the signatory, created using data under the signatory's sole control, and linked to the signed data in a manner that detects any subsequent change. AES provides a significantly stronger foundation for the authenticity and integrity requirements but does not inherently include third-party identity verification.

Qualified electronic signatures (QES) are advanced electronic signatures created by a qualified electronic signature creation device and based on a qualified certificate issued by a Qualified Trust Service Provider (QTSP). Under UK eIDAS, QES carries the equivalent legal effect of a handwritten signature.8 HM Land Registry's acceptance of QES for property transfers and charges from October 2025 demonstrates growing regulatory confidence in this standard for high-stakes legal documents.10

QES represents the most robust alignment with the draft Bill's functional requirements. The qualified certificate confirms identity through face-to-face or equivalent verification by a QTSP, satisfying the authenticity pillar. The cryptographic binding of signature to document addresses integrity. The secure creation device requirement contributes to security. Practitioners preparing for electronic wills implementation should therefore treat QES as the target standard, recognising that lesser signature types may be found insufficient when regulations are eventually made.

3. Technical Implementation Considerations

3.1 Identity Verification Technologies

Satisfying the authenticity requirement demands multi-factor identity verification exceeding standard client identification procedures. Current options include government-issued identity document verification using NFC chip reading and facial comparison, liveness detection to prevent the use of static images or deepfake video, and knowledge-based authentication drawing on information known only to the testator.11

The SRA's existing guidance on will drafting emphasises competence in verifying client identity and instructions, with an earlier shadow shopper exercise (conducted prior to the current SRA guidance framework) having found that nearly 25% of solicitor-drafted wills failed quality standards.11 While the underlying research predates current regulatory guidance, the SRA continues to cite the finding in its published will-drafting guidance as evidence of ongoing quality risks. Electronic execution adds a technological layer to these competence obligations. Firms must ensure that identity verification is not delegated entirely to automated systems without professional oversight, particularly given the SRA Code of Conduct requirements under paragraphs 3.3 and 3.5 regarding competence and accounting for client circumstances.12

The interaction between technology-assisted verification and the solicitor's professional duty creates a layered model: automated systems provide initial identity assurance, while the practitioner retains responsibility for contextual judgment. A QTSP-verified identity confirms the person's legal identity but cannot assess whether the testator is acting freely or under duress. That evaluative function remains firmly within the professional domain.

3.2 Document Integrity Mechanisms

The integrity requirement, ensuring that alterations are detectable and originals distinguishable from copies, calls for cryptographic mechanisms embedded at the point of execution. Cryptographic hashing generates a unique digital fingerprint of the document at the moment of signing. Any subsequent modification, even a single character change, produces a different hash value, rendering the alteration detectable. Trusted timestamping, provided by a qualified timestamp authority under UK eIDAS, creates an independently verifiable record of when the document was signed, preventing backdating or post-execution manipulation.8

Blockchain and distributed ledger technology (DLT) have been proposed as alternative integrity mechanisms, offering theoretically immutable records of testamentary documents. However, blockchain-based approaches currently face significant practical barriers for testamentary use, including cost, technical complexity, the absence of regulatory recognition for testamentary purposes in any UK jurisdiction, and unresolved questions regarding private key management upon the testator's death. Until regulatory frameworks explicitly accommodate DLT-based systems, conventional cryptographic hashing and qualified timestamping remain the more defensible approach for practitioners.

Audit trail generation should capture the complete execution ceremony: identity verification outcomes, signature application timestamps, witness attestation records, and any remote witnessing session metadata. These audit trails serve an evidentiary function analogous to the attestation clause in paper wills, providing courts with a contemporaneous record of compliance with formalities.

The combination of cryptographic hashing, qualified timestamping, and comprehensive audit trails creates what may be termed a "digital attestation package" that accompanies the electronic will throughout its lifecycle. Unlike a paper will's attestation clause, which records compliance at a single moment, the digital attestation package provides a continuous, tamper-evident chain of custody from execution through storage and eventual submission to probate.

3.3 Storage and Long-Term Preservation

Electronic wills present distinctive storage challenges. Unlike paper wills, which degrade physically but remain readable for centuries under reasonable conditions, electronic documents depend on continued access to compatible software and hardware. Long-term digital preservation requires format standardisation (PDF/A-3 is the current archival standard), redundant encrypted storage across geographically separated locations, and migration protocols ensuring continued accessibility as technology evolves.

UK GDPR compliance introduces additional complexity. The ICO's storage limitation guidance requires that personal data be retained only as long as necessary for its stated purpose.13 Testamentary documents must, by their nature, be retained for the lifetime of the testator and potentially decades beyond for probate administration. Firms must articulate a lawful basis for long-term retention and implement data protection impact assessments addressing the enhanced sensitivity of testamentary information in digital form. The retention period for associated biometric identity verification data, session recordings, and audit trails requires separate justification, as these ancillary records may not need to be retained for the same duration as the will itself.

4. Remote Witnessing Under the Draft Bill

4.1 Distinction from Expired COVID Provisions

The temporary video witnessing provisions introduced by the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 expired on 31 January 2024, having been extended once by SI 2022/18.14 Wills witnessed remotely after that date are not valid under current law. The draft Bill's remote witnessing provisions represent a fundamentally different approach, integrated within the broader framework of electronic wills rather than as an emergency concession.

Under the draft Bill, remote witnessing via "visual transmission" is permitted only for electronic wills, not for paper wills.15 The testator and witnesses need not be physically present together, provided the execution takes place through a visual transmission that satisfies the "reliable system" requirements. Paper wills continue to require the physical co-presence of testator and witnesses, maintaining the existing formality distinction. This bifurcation has significant practice implications: firms must maintain separate execution protocols for paper and electronic wills, and practitioners must be clear with clients about which formality regime applies to their particular instrument.

4.2 Practical Protocols and Risk Considerations

Remote witnessing introduces risks that physical presence naturally mitigates. A solicitor present in the same room as a testator can observe body language, environmental cues, and the presence of potentially coercive third parties. Video transmission constrains observation to what the camera captures.

Effective protocols for remote witnessing should include mandatory camera field-of-view requirements ensuring the testator's face and immediate environment are visible, confirmation that no other persons are present or, if present, identification and recording of their presence, independent witness verification procedures confirming each witness's identity and voluntary participation, and session recording with secure storage as part of the execution audit trail.

The experience of the COVID-era video witnessing provisions offers instructive lessons. During the period from 31 January 2020 to 31 January 2024, practitioners developed ad hoc protocols for remote witnessing that varied significantly between firms.14 The draft Bill's "reliable system" requirement imposes a higher standard than the temporary provisions, which did not mandate specific technology standards. Firms that operated under the COVID provisions should not assume those protocols would satisfy the draft Bill's requirements without substantial enhancement.

The Law Commission acknowledged these risks, noting that the dispensing power under clause 10 provides a judicial safety net where technical requirements are not fully met but testamentary intention is clear.4 However, reliance on the dispensing power as a routine backstop exposes practitioners to professional negligence claims. A solicitor who facilitates an electronic will execution knowing that the system may not fully satisfy "reliable system" requirements, on the expectation that a court would subsequently dispense with formalities, falls below the standard of competence expected under the SRA Code of Conduct.12

5. Risk Assessment and Mitigation Framework

5.1 Fraud and Technology-Specific Threats

Electronic wills introduce fraud vectors absent from paper execution. Deepfake technology presents a credible risk to video-based identity verification, requiring liveness detection protocols that test for three-dimensional facial movement rather than relying on static image comparison. Document forgery in electronic environments may involve metadata manipulation, signature transplantation, or complete fabrication of apparently compliant documents.7

Mitigation strategies should be proportionate to the value and complexity of the estate. High-value estates may warrant enhanced verification including in-person identity confirmation followed by electronic execution, while simpler matters may be adequately served by standard QES-based workflows with automated identity verification. A risk-tiered approach allows firms to allocate verification resources efficiently without applying disproportionate controls to routine matters.

5.2 Undue Influence in Digital Environments

The Law Society's concerns regarding undue influence in electronic execution environments merit serious consideration.7 Remote settings may enable coercive parties to position themselves outside camera view, or to exert pressure through digital communications invisible to the solicitor. Capacity assessments conducted via video lack the environmental context that physical attendance provides.

Practitioners should develop screening protocols for remote execution that include pre-execution welfare checks conducted separately from the will instruction process, random follow-up contacts to verify continued testamentary intention, and structured capacity assessment frameworks adapted for remote delivery. The current common law test for testamentary capacity under Banks v Goodfellow (1870) remains the applicable standard, as the Law Commission's recommendation to adopt the Mental Capacity Act 2005 test has not been enacted.1617 Whether conducted in person or remotely, the four-limb Banks v Goodfellow test requires the practitioner to assess whether the testator understands the nature of making a will, appreciates the extent of their property, comprehends the claims to which they ought to give effect, and is not affected by any disorder of the mind. Remote assessment does not alter the substance of this inquiry but limits the observational tools available to the practitioner.

5.3 Professional Liability During Transition

The transition period between current law and potential enactment presents specific negligence risks. Practitioners must not offer electronic wills as a current service, as they have no legal validity under the Wills Act 1837 as it stands. Internal system development and testing should be clearly documented as preparatory, with client-facing communications explicitly confirming that all wills continue to be executed in accordance with current formality requirements.

Professional indemnity insurers have not, as of February 2026, issued sector-wide guidance on electronic wills. Firms undertaking preparatory technology investment should engage with their insurers proactively to confirm that systems development activities fall within existing policy terms and to anticipate any endorsement requirements when electronic wills become legally valid.

6. Staged Readiness Framework

Given the legislative uncertainty, a staged approach to electronic wills readiness balances operational preparedness against premature investment risk.

Stage 1: Assessment and Planning involves auditing current will-execution workflows, identifying technology gaps, and mapping the draft Bill's functional requirements to existing systems. This stage requires no capital expenditure and can be completed immediately. The assessment should include an inventory of current case management, document storage, and identity verification capabilities, benchmarked against the three functional requirements of the draft Bill.

Stage 2: Infrastructure Foundation focuses on establishing the technology prerequisites that serve broader practice modernisation regardless of whether electronic wills legislation is enacted. Implementing QES capability, strengthening identity verification procedures, and upgrading document management systems to support cryptographic hashing and audit trails benefit practice efficiency independently of wills reform.10 Firms at this stage may also establish relationships with QTSPs and evaluate potential integration with existing practice management platforms.

Stage 3: Parallel Development commences when legislation is introduced to Parliament. At this stage, firms develop electronic will execution workflows alongside maintained paper processes, conduct staff training, and undertake controlled testing. Client-facing services remain paper-based until legislation receives Royal Assent and secondary regulations are made. Training should encompass both the technical operation of electronic execution systems and the adapted professional judgment required for remote capacity assessment and undue influence screening.

Stage 4: Controlled Deployment follows enactment and the publication of Secretary of State regulations specifying "reliable system" standards. Initial deployment should be limited to straightforward matters with low contestation risk, expanding to complex estates as operational confidence develops.

This staged approach mirrors the draft Bill's own incremental philosophy. The Law Commission did not propose abolishing paper wills but rather creating an additional, technology-enabled pathway for testamentary execution.2 Practitioners should adopt the same parallel-path strategy, maintaining established procedures while developing new capabilities.

Conclusion

The Law Commission's draft Bill for a new Wills Act represents a significant but measured step toward modernising testamentary formalities. The "reliable system" framework, grounded in functional outcomes rather than prescribed technologies, provides sufficient architectural guidance for forward-looking practice planning while preserving the flexibility essential in a rapidly evolving digital landscape.

The integration of UK eIDAS electronic signature standards, particularly Qualified Electronic Signatures, offers the most credible pathway to satisfying the draft Bill's authenticity and integrity requirements. HM Land Registry's adoption of QES for property transactions provides a persuasive regulatory precedent for high-stakes legal documents.

However, preparation must not be confused with premature implementation. Electronic wills have no legal validity under current law, and the absence of a confirmed legislative timetable demands that investment be staged and reversible. Practitioners who develop electronic capabilities alongside maintained paper workflows position their firms to respond effectively when legislation is enacted, without exposing clients to formality failures in the interim.

The profession's divided opinion, reflected in the Law Society's survey, underscores the need for evidence-based implementation rather than technology advocacy. The risks of fraud, undue influence, and data protection non-compliance in digital execution environments are real and require substantive mitigation, not dismissal. The solicitor's professional judgment in assessing capacity, detecting coercion, and ensuring informed testamentary intention remains irreplaceable regardless of the execution medium.

CPD Declaration

Estimated Reading Time: 20 minutes Technical Level: Advanced Practice Areas: Private Client, Legal Technology, Compliance, Will Drafting

Learning Objectives

Upon completing this article, practitioners will be able to:

  1. Identify the three functional requirements of a "reliable system" under the Law Commission's draft Wills Bill for electronic wills and explain how each addresses a specific risk category.
  2. Distinguish between simple, advanced, and qualified electronic signatures under UK eIDAS and evaluate the suitability of each tier for electronic will execution.
  3. Evaluate the fraud and undue influence risks associated with remote witnessing and electronic execution, applying appropriate mitigation controls to practice protocols.
  4. Apply a staged readiness framework to assess firm preparedness for electronic wills implementation, accounting for legislative uncertainty and professional indemnity considerations.

SRA Competency Mapping

  • Paragraph 3.3: Maintain competence and keep professional knowledge and skills up to date, including awareness of proposed legislative changes affecting will-writing practice.
  • Paragraph 3.5: Consider and take account of the client's attributes, needs and circumstances, including the implications of electronic execution for vulnerable clients.
  • Paragraph 4.3: Effectively manage current matters, ensuring that technology adoption does not compromise service quality during transition periods.

Reflective Questions

  1. How would the introduction of electronic wills affect current will-execution workflows within your practice, and what infrastructure investments would be necessary to satisfy the draft Bill's "reliable system" requirements?
  2. What additional safeguards would you implement when conducting capacity assessments and detecting undue influence in a remote witnessing environment compared to physical attendance?
  3. How might your firm's current professional indemnity insurance terms need to be reviewed in anticipation of electronic wills becoming legally valid?

Professional Disclaimer

The information presented reflects the regulatory and legislative position as of 2026-02-02. Regulations, tax rules, and professional guidance are subject to change. Readers should independently verify all information before acting and seek advice from appropriately qualified solicitors, financial advisors, or other professionals for their specific circumstances.

Neither WUHLD nor the author accepts liability for any actions taken or decisions made based on the content of this article. Professional readers are reminded of their own regulatory obligations and duty of care to their clients.

Footnotes

Footnotes

  1. Wills Act 1837 (c. 26). https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26 ↩

  2. Law Commission, Modernising Wills: Final Report, Volume I (May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report/ ↩ ↩2 ↩3 ↩4

  3. Law Commission, Modernising Wills: Final Report Volume II: Draft Bill for a New Wills Act (May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report-volume-ii-draft-bill-for-a-new-wills-act/ ↩ ↩2

  4. Law Commission, Modernising Wills: Final Report Volume II: Draft Bill for a New Wills Act, Clause 10 (May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report-volume-ii-draft-bill-for-a-new-wills-act/ ↩ ↩2

  5. UK Government, Government Response to the Law Commission Report Making a Will (May 2025). https://www.gov.uk/government/publications/government-response-to-the-law-commission-report-making-a-will ↩

  6. The Law Society, "No Will to Act on Wills Reform" (2025). https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/no-will-to-act-on-wills-reform ↩

  7. The Law Society, "Proposals to Introduce Electronic Wills Need More Scrutiny" (November 2023). https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/proposals-to-introduce-electronic-wills-need-more-scrutiny ↩ ↩2 ↩3

  8. Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (SI 2016/696). https://www.legislation.gov.uk/uksi/2016/696 ↩ ↩2 ↩3

  9. Data (Use and Access) Act 2025 (c. 18), Part 7, Trust Services. https://www.legislation.gov.uk/ukpga/2025/18/part/7/crossheading/trust-services ↩ ↩2

  10. HM Land Registry, Practice Guide 82: Electronic Signatures Accepted by HM Land Registry (October 2025). https://www.gov.uk/government/publications/electronic-signatures-accepted-by-hm-land-registry-pg82/practice-guide-82-electronic-signatures-accepted-by-hm-land-registry ↩ ↩2

  11. SRA, Drafting and Preparation of Wills (April 2025). https://www.sra.org.uk/solicitors/guidance/drafting-preparation-wills/ ↩ ↩2

  12. SRA Code of Conduct for Solicitors, RELs and RFLs (2019, as amended). https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/ ↩ ↩2

  13. ICO, Storage Limitation Guidance. https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/data-protection-principles/a-guide-to-the-data-protection-principles/storage-limitation ↩

  14. Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020/952). https://www.legislation.gov.uk/uksi/2020/952 ↩ ↩2

  15. Law Commission, Modernising Wills: Final Report Volume II: Draft Bill for a New Wills Act (May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report-volume-ii-draft-bill-for-a-new-wills-act/ ↩

  16. Banks v Goodfellow (1870) LR 5 QB 549. ↩

  17. Mental Capacity Act 2005 (c. 9). https://www.legislation.gov.uk/ukpga/2005/9 ↩