Will The UK Introduce An Electronic Wills Act?
For nearly two centuries the legal industry has been adhering to the Wills Act 1837 which relies on face-to-face interactions, paper files, and wet signatures but is it time to embrace technology and move over to digital signatures?
The Uniform Electronic Wills Act, which permits testators to create, sign notarise, and execute a valid Will without ever having to be in the physical presence of another person, has been passed in the United States in July 2019.
We asked professionals in the industry whether they think the UK will follow suit and why the Law Commission is reluctant to accept them as secure enough for a Will.
Adam Sym, probate executive at Stephensons Solicitors said:
“I do think the UK will eventually follow suit, though not in the near future. I suspect that the Law Commission’s concerns boil down to such a system being largely untested and I believe they will have a close eye on how the system works in the US. I am confident that the technology that could be implemented will be more secure than hand-written Wills. I think we could also see a move towards a witness or witnesses playing a role similar to that of a certificate provider in a Lasting Power of Attorney and that the witness will have to certify certain statements about the testator before they sign.
“I think we will likely find that compulsory Will registration will be introduced first, similar to the French FCDDV or Spanish Registro de Actos de Última Voluntad. I believe such a system, whether the Wills are in paper or electronic format, could require individuals to sufficiently prove their identity and could require a suitably qualified professional to prepare the same. This would remove a lot of the issues with home-made Wills and uncertainty in probate cases and ought to ease the burden on HMCTS created by disputes surrounding home-made Wills. Savings made in this regard could be passed onto executors making probate applications and a reduced fee offered compared to the fee for letters of administration application, thus incentivising more adults to make a Will.”
Heledd Wyn, Associate Director at Gregg Latchams commented:
“The Law Commission’s recent report (Electronic execution of documents) published in September 2019 is very comprehensive in its views on powers of attorney and why a traditional ‘wet ink’ signature which is witnessed is preferable to an electronic signature which may not need a witness. While this did not cover Wills (which is subject to a separate project) the purpose of retaining this traditional method is to help prevent fraud. This applies just as much to Wills as it does powers of attorney as how will it be possible to tell that the person who has digitally signed a document complied with the necessary legal requirements? Who will check whether there is undue influence, lack of capacity, lack of knowledge and approval? What checks and balance will there be for those who are vulnerable ‘sign’ a Will in favour of someone who may be benefitting at the expense of a beneficiary who can reasonably expect provision to be made by the testator?
“Signing a Will digitally or otherwise is the work of mere moments. However, the legislation underpinning the formalities and validity of Wills is centuries old and has a great deal of case law supporting how and why Wills should be upheld. A digital signature could potentially remove all the safeguards and while a move to a more digital world appears to be inevitable, there is still a long way to go to ensure that digital signatures are appropriate.”
Gillian Coverley, Partner at Irwin Mitchell LLP further added:
“The English law relating to execution of Wills is over 180 years old and ripe for updating to reflect modern society. The reality of doing that and still providing appropriate safeguards as to due execution of such an important document is the difficulty. Electronic signatures without the need for witnesses undermines the protective function that witnesses provide. The key fact is that by the time the Will is needed to be used the person who executed the Will is no longer with us. Any issues over capacity or want of knowledge and understanding of the Will are often verified by the witnesses. Without this function, it would increase the opportunity for fraud – who could be sure the Testator had actually ‘esigned’ – Others often have easy access to the Testator’s computer and personal data and could create a Will without the Testator’s knowledge. Additional identity and capacity safeguards would need to be fully considered.”
Charlotte Ponder, Legal Director at Countrywide Tax & Trust Corporation Ltd added:
“I think it would be a great, if very brave, step forward for the UK to follow suit, but I hope it will happen in my lifetime. It would underline the principle of testamentary freedom if Wills could be made without another person being physically present at execution.
“It would also remove the administrative burden that can put people off from making wills, and surely more people making Wills is a good thing that we should all be encouraging and embracing.
“Lots of people have objected to electronic Wills on the basis that making such an important document without the involvement of anyone else could perpetuate fraud and abuse – but such things are prevalent in the making of Wills and associated documents in any event. Frequent cases of forged documents come before the courts at present – perhaps technology could eliminate some of the issues present in Will making now, instead of exacerbating the problem.
“If the industry is willing to solve the problems that exist now and continue to do so, we can start to move in the right direction.”
Eleanor Evans, Partner Trusts and Estates Administration at Hugh James Solicitors, commented:
“I have no doubt that, at some point in the not too distant future, the UK will follow the lead of the US in allowing testators to create and sign a valid will with an electronic signature. The Law Commission launched a public consultation on reforming the law of wills in 2017, with a view to modernising the law to take into account the changes in society (such as technological advances) that have taken place since the Wills Act 1837. Whilst the Law Commission’s wills project has been paused temporarily whilst other projects are prioritised, the move towards modernisation of the law of wills remains very much on the agenda.
“The Law Commission provisionally proposed that an enabling power should be introduced, allowing electronically executed or fully electronic wills to be recognised as valid. At present, it is not clear precisely how an electronic will may be made, which provides adequate safeguards against the risks of fraud and undue influence. The Law Commission therefore proposed that the enabling power should be exercised once it is possible to make an electronically executed or fully electronic will, which offers testators sufficient protection against these risks. It seems likely that the Law Commission will continue to review the law in the context of the rapidly changing technological landscape. Whilst it seems the UK is not quite ready to follow the US, electronic wills in the UK cannot be far away.”