Can I sign and store my Will electronically?
When I was choosing my specialism as a lawyer, a colleague was dumbfounded over my attraction to inheritance law. He felt its arcane nature was best captured by Dickens, in the fictional probate case of Jarndyce v Jarndyce.
I am not quite old enough to remember the days of handwritten and stitched Wills, but the law governing the validity of modern Wills remains the Wills Act of 1837, the year in which the first instalment of Oliver Twist was published. There has been some concession to the modern era: The pandemic changed the way people prepared Wills. You might now have a Zoom meeting with your legal professional; or you might input information into the website of a Will-making company, from which they produce your Will. However, while you can sign contracts and deeds ‘electronically’ (where a typed signature or an image of a signature is attached to an electronic document), the way we execute our Wills has remained unchanged (excepting the temporary measures introduced for Covid-19). You and your witnesses must be physically present and sign a paper Will with ‘wet-ink’ signatures. I don’t quite offer clients a quill, but I do have a ‘best’ pen!
Around half of adults in this country do not have a Will and there is a consensus that the Will-making process should be more accessible. Earlier this month the Law Commission, a body which recommends changes to the law, published a paper seeking views on whether electronically executed Wills could conform to the requirements of the Wills Act 1837. They asked whether those Wills could then be stored electronically, so that when the Will-maker died, their electronic Will could be submitted to obtain a Grant of Probate, the certificate used to access the deceased’s assets.
As indicated above, in recent years, in other contexts, electronic documents have become normalised. In jurisdictions in the US, Canada and Australia, you can now execute Wills electronically. What is holding England and Wales back?
There are worries that owing to the specific nature of Wills, electronically executed versions could be open to abuse. There is only one party to a Will, and it is generally kept confidential. It can be revoked at any time up to death and is not registered with a State body. It is only Court-validated after death. All this means that identifying the Will-maker and ensuring there is no undue influence or lack of capacity are concerns. In the US, biometrics and encryption, notarisation and video recording can be used as safeguards, but they are not used uniformly. Do we have appropriate infrastructure for those types of safeguarding here yet, and are we convinced that issues surrounding capacity and coercion are eliminated? The Law Commission suggests that specific validity requirements for electronically executed Wills would be key.
The ability to sign other legal documents electronically suggests that electronic Wills are on the horizon. However, the process of making a Will must be as secure as possible to avoid challenges after death. Whilst the current method of execution of Wills may seem an old-fashioned anomaly, there can be reassurance for Will-makers that their Wills are not a leap into the unknown.