Proposed reforms in England and Wales: How long should my paper Will be stored for?

On 15 December 2023, the Ministry of Justice published a consultation about the “Storage and retention of original Will documents”. The consultation sets out proposals to amend current legislation so that only digitised versions of original Will documents of most Wills are preserved in perpetuity and the paper versions are stored for a limited period of time. 

It has been claimed that the reason for the consultation is that the current system of storing Wills involves a significant storage and preservation cost. It is estimated to currently be in the region of £4.5 million a year, but will continue to increase as the service is outsourced, meaning that in the event of a change in supplier, there would be large costs associated with physically relocating large amounts of material between sites under controlled conditions. As such, the consultation claims it is difficult to justify when “digital preservation offers an equally efficient, much more economic and environmentally beneficial alternative”. 

The Government considers that, while the law should be changed to permit the retention of digital versions in place of original paper Wills, there should be a policy to retain those paper Wills and potentially other documents for a certain period. The Government suggests 25 years as a suitable period. Furthermore, the general system of digitising original Will documents would not preclude exceptions being made where there is a “national interest in preserving an original Will document for posterity and future historical or academic enquiry”. For example, this may relate to the Wills of famous individuals. 

In light of the above, the consultation is seeking wider views on the criteria which should be adopted in identifying Wills that should be preserved permanently. This would apply to Wills already being held, for example, the Will of Charles Darwin, Charles Dickens and Diana, the Princess of Wales.

Whilst the above suggested reforms may appear significant, it is important to recognise that, since 2021, digital copies of Wills and supporting documents in all new applications, whether online or not, have been made. According to the consultation, this has been “entirely satisfactory for users”, placing doubt on the necessity of keeping the original documents in new applications. Currently, when a request for an older Will is made, a digital version is provided to fulfil that request and it is claimed that this has also proven satisfactory. As such, it is claimed that introducing a rolling programme to digitise all older Wills would reduce the costs markedly to below the current levels. 

Proposed legislation changes 

If the principle of reform were to be accepted, the Government considers that it would be achieved by secondary legislation under the Electronic Communications Act (ECA) 2000 (“the ECA 2000”).

Section 8(1) of the ECA 2000 provides powers to the appropriate Minister to modify the provisions of:

(a) any enactment or subordinate legislation; or

(b) any scheme, licence, authorisation or approval issued, granted or given by or under any enactment or subordinate legislation.

They may do this in such a manner as they think fit for authorising or facilitating the use of electronic communications or electronic storage (instead of other forms of communication or storage) for any purpose mentioned in subsection (2).

The relevant subsection is 8(2)(e), which relates to “the keeping, maintenance or preservation, for the purposes or in pursuance of any such provisions, of any account, record, notice, instrument or other document”. 

Alternatively, the Government may also achieve the reforms by amending primary legislation as set out in the Senior Courts Act 1981. However, this would be more difficult and take longer to achieve as the amendment of primary legislation is subject to greater parliamentary scrutiny. 

Potential problems and concerns associated with the proposals

Whilst the consultation was only released a few weeks ago, the suggested proposals have already gained interest and concerns continue to be raised. For example, Roger Barlett, who is a former Deputy Chancery Master, having retired from practice as of 31 August 2017, has highlighted that it is not uncommon for a Will to be challenged in litigation more than 25 years after probate has been granted. 

Current practice entails the court directing that the original document be deposited in court and made available for inspection by the parties and the judge. However, if the original document has been destroyed, this means that such inspection would no longer be available. 

Although it is claimed that digital preservation offers an equally efficient alternative to storage of the original document, this does not take into account that it is inevitable that mistakes will be made. For example, there is the possibility that the document may be accidentally scanned with missing pages. It is likely that such an error would only come to light after the original document had been destroyed. This may pose problems for individuals seeking to successfully challenge the validity of a Will in the event that a copy cannot be acquired, meaning their prospects of success will decline. 

Furthermore, the consultation does not appear to consider handwritten documents and how digital versions of these types of documents are often illegible. For example, many old documents were written on waxed papers, which become transparent under the scanning beam. It also does not seem to consider that experts, when providing an analysis of handwriting, often rely on the original document itself. A digital version of the original document is often a poor substitute, which may, as a result, mean that expert reports become more time-consuming and expensive, and the likelihood of inconclusive results could increase.

Separately, whilst the Government is seeking views on the criteria that should be adopted in identifying Wills that should be preserved permanently, it is important to recognise that individuals who may be deemed important in the current age, may not have been seen in the same light several years ago. The reason for this is because there are changes over time in what society deems as important. 

In light of the above, historians are also raising concerns in relation to the consultation with co-host of ‘The Rest is History’, Tom Holland, claiming the proposal was “obviously insane” and Sir Richard Evans claiming “to destroy the original documents is just sheer vandalism in the name of bureaucratic efficiency”.

We are yet to see whether the proposed reforms are likely to be enacted. However, in the event that they are implemented, it is likely that, while costs in relation to storage may decrease, there will be a spike in other issues associated with the digitisation of these documents. 

A copy of the consultation can be accessed online and will run for 10 weeks, closing on 23 February 2024.