Hansard

This is an interesting bill, which we have been dealing with in the DPLR Committee. I will address my remarks to the rectification provisions in sections 3 and 4.

In particular, I note that the minister said, as reported in paragraph 73 of the committee’s report, that we are looking at the grounds for rectification being only when what the testator has wanted and has clearly expressed as being wanted is not reflected in the will.

The minister also said:

“We will continue to reflect on whether software could be considered as constituting a third party.”—[Official Report, Delegated Powers and Law Reform Committee, 29 September 2015; c 7.]

That refers to where software contributes to the misrepresentation in a resulting will of the intentions that were clearly stated by the testator. The important point is that we have to consider what is done with software, which is quite different from using electronic means to fill in the blanks in a template with one’s intentions. In that case, the intention of the testator is directly keyed, through the keyboard, into the resulting document without any intermediate computer, computer programmer or computer program operation.

Thinking about the matter further, I note that there is clearly a third party when a computer program is involved, because there is the programmer who produced the program. All computer programs are similar in that it is impossible to guarantee a computer program, however simple it may be, to be free from potential error under some circumstances. Even though the testator might have keyed only, “I wish to leave all my assets to my spouse”, for example, it is still perfectly possible for a computer program to scramble that and misspell “spouse”, for the sake of argument. The resulting document would therefore require rectification in order to give effect to the testator’s intention. I think that we have to take account of that.

The difficulty that a court is likely to have to wrestle with is whether there is something that would give clear insight into what the testator’s intentions were. If the testator just keys some data into a computer program, there will be no clear record of the testator’s intentions unless what is keyed in is preserved for examination at a later date.

One of the aspects that we might address that is outwith the legislation but related to it is seeking to provide advice to those who produce automated systems for producing wills that are drawn up by computer programs about the need to preserve directly the testator’s input so that it is possible to examine whether the operation of the computer program has taken the testator’s stated intentions as expressed through the keyboard and produced a will that is different from those intentions.

I think that that lies at the heart of what we would almost certainly need to do. The Government could help those who draw up such programs by making that point and perhaps setting it down as the test that the courts might apply.

It has been an interesting bill to scrutinise. In particular, there is the fiction in section 12—on forfeiture—that means that, if someone murders the person from whom they are due to inherit, that “offender”, although physically still living, is legally dead. That is an exciting and engaging prospect. I look forward to the subsequent stages of the bill.