Traditional “formalities” in the law of wills—including formal requirements for revocation by destruction—contemplate paper documents, wet signatures, and testators and witnesses in the physical presence of one another. Unless these traditional requirements have been modified by legislation, wills made using one or more electronic formalities will not meet the formal requirements for a valid will. Traditional wills formalities have become something of an outlier as the use of electronic text, records, signatures, and witnessing has become routine in many spheres, including for the creation and storage of valid legal agreements. The special nature of wills, and their consequent vulnerability to fraud and reliance on documentary evidence of intent, has been cited as a justification for retaining traditional formalities.
A recent article by an international project team including ACHLR Planning for Healthy Ageing program members Kelly Purser and Tina Cockburn together with ACHLR Adjuncts Margaret Hall (Professor, Simon Fraser University, Vancouver, Canada) and Bridget Crawford (Distinguished Professor, Pace University, New York, USA), and Rosie Harding (Professor, University of Birmingham, UK) undertakes an international comparative analysis which examines the risks, benefits, and opportunities associated with electronic formalities, as well as their implications for wills storage, the assessment of testamentary capacity, and related issues. It also evaluates the adequacy of dispensing provisions as an alternative to electronic formalities.
This open access article is available online from the McGill Law Journal.
Other research outputs, which consider important contemporary global issues relating to technology facilitated wills and safeguarding capacity, published by this international research collaboration comprised of colleagues from Canada, the United States, the United Kingdom and ACHLR (Australia) include: an invited presentation, Safeguarding Legal Capacity in the Context of Electronic Wills: A Comparative Law Approach, at the Succession Law Symposium (University of Cambridge, UK, July 2024); a U.K. law reform submission, Law Commission (UK) Consultation Response: Wills 2023, which was cited favourably several times in the recently released UK Law Reform Commission Report, Modernising Wills Law; and a book chapter in Sloan (ed), A Research Agenda for Succession Law (Edward Elgar, forthcoming 2025).
