Over the last few weeks Will Writers across the UK have been experiencing some unique challenges when it comes to taking instructions for Wills and having them executed. Frustratingly for many, these are problems that could be easily overcome by the technology we have today if only the law allowed for it! This has given us cause to think on just how this could have a lasting impact on how we write wills, so in this purely speculative piece we will be looking at what the future of Will Writing may look like. This will be all based on suggestions for reforms made by our own Law Commission as well as what other countries with similar legal systems to our own already do.
To meet the formality requirements of section 9 of the Wills Act 1837 a will must be in writing. “In writing” extends to documents prepared electronically using a word processor or will writing software, but at some point it must be printed and sent to the client to be executed. A wet ink signature by the testator and their two witnesses is required.
People are become increasingly reliant on technology and expect to be able to manage many of their affairs online; from mobile banking to managing billing accounts online, so why not their Will?
In a consultation paper published in 2017 titled ‘Making a Will’ the Law Commission made many proposals for modernising succession law. Among them was a suggestion for developing this area of law so that wills could be validly executed electronically. This would make the whole process digital and introduce ‘electronic Wills’. This would open up a more convenient method of will drafting for people by allowing the whole process from giving instructions to receiving and signing the will to be completed completely remotely.
For electronic wills to work legislation would need to be introduced to recognise electronic signatures as a valid method of signing a will. Electronic signatures are already perfectly valid in many other areas and have been recognised since 2000 when the Electronic Communications Act 2000 was introduced, though updates have been made since by the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (eIDAS). These mainly relate to recognition of e-signatures in relation to commercial transactions though. Wills are not contracts, and it has previously been made clear that these regulations don’t apply to them. So it seems that signatures on wills are held to a higher standard and there are various methods of making an e-signature, so determining which is secure enough for signing a will is a challenge in and of itself.
In terms of security the e-signature must be more than the testator’s name simply typed. This is too susceptible to fraud as any electronically typed name looks the same no matter who types it. Similar problems apply to digital images of written signatures. The Law Commission suggested that more complex methods would be required such as biometrics or encryption-based signatures that could be linked to the testator more reliably. Considering the weight that has been attached to “handwriting forensics” in previous will disputes, an e-signature must be at least as secure as handwritten signatures.
It would also need to be considered how such a signature could be validly witnessed.
Remote Witnessing of Wills
In the current climate of social distancing, and for some social isolation, the topic of remote witnessing of wills is a hot one. Under the current law two witnesses need to be physically present when the testator signs his or her will. This has always been interpreted as being in the same room and having line of sight of the testator making their signature, although there are some old cases being dragged to the forefront again where this physical presence requirement has been satisfied by witnesses watching through the window.
We’ve written on this previously here: https://www.willwriters.com/blog/coronavirus-attestation-wills/
Since this last article the Law Society have announced that they are in talks with the Ministry of Justice about what emergency measures can be put in place to overcome the problems we are facing with validly signing wills at the moment. One suggestion is legislation to allow for these strict witnessing requirements to be relaxed to allow for remote witnessing via video conferencing apps like Skype or Zoom. This overcomes the physical presence issue.
Interestingly, Scotland have already taken this exact approach. The Law Society of Scotland recently updated their guidance to state that if a suitable witness can’t be physically present when the testator signs then it is acceptable for the solicitor who drafted the will to witness the testator signing the will by video link. The testator can then send the will to the solicitor who can sign it themselves upon receipt, and the will would be valid. In their words, “We would anticipate that this would be deemed to form one continuous process as required by the legislation.”
Other Technological Alternatives
Another option the Law Society and MOJ are said to be considering is an Australian style approach to the interpretation of what constitutes a will.
The validity requirements for Australian wills largely mirror our own with regards to signing and witnessing. In some states in Australia though, the courts have discretionary powers to dispense with these validity requirements and admit a will to probate even if it is in a ‘non-traditional’ form. They may do this if they are convinced that the testator intended the non-traditional document to take effect as their will. This has led to cases where letters that have not been witnessed and typed up but never printed documents have been admitted to probate, and in at least one case a video will being allowed.
Perhaps the most surprising use of this power was seen in Queensland, where an unsent text message saved in the drafts of a man’s phone was held to be his valid will, written shortly before he committed suicide and left in a place where it would be easily found.
If our courts adopted a similar system it would allow a lot more documents to be treated as valid wills. It would place more weight on the deceased’s intention that the document take effect as a will, and less on the formal signing requirements. This could mean that a document that on the face of it looks like a will but fails as it wasn’t correctly witnessed, could still be admitted to probate. The obvious pitfall of this approach though is that it relies on the courts approving such a document.
The ongoing Covid-19 pandemic has forced many of us to change our working habits, especially in this industry where we mostly have to work face to face with clients, many of whom are vulnerable. When the option to simply visit a client is taken away very suddenly like this it is obviously hard to adapt. For many people it has also called into question the suitability of the current law on drafting and executing wills, and how it could be adapted to more modern times. After all, the legislation we rely on is nearly 200 years old and clearly could never have anticipated a future where documents could be produced and signed electronically, or where a person could still clearly witness a testator’s signature despite being miles away. If anything, it’s certainly an argument that the suggestions for modernising succession law that the Law Commission made back in 2017 should be brought back to the forefront after being put on hold in 2018. If any changes to legislation do come about as a result of this pandemic, it would be interesting to see what lasting impact they have on the future of will writing.
17th April 2020 at 5:20 pm
But I don’t think that any alternative tech wills are acceptable, I remember the Queensland case welol and I was appalled at the lax attitude on display.
Electronic signatures are undeveloped at the moment and I think that the current system is as good as you’ll get, faulty as it is
18th April 2020 at 3:44 pm
Thank you for the update. My clients are signing in front of witnesses who are the other side of a window, and pass it through when their turn comes and they are all present. This keeps the social distancing and makes sure that all parties are witnessing correctly as required.
Appreciate the updates. Stay safe all.
22nd April 2020 at 9:55 am
We have come up with many innovative ways of keeping social distancing whilst wills are signed and the sharing of these innovations gives willwriters many avenues of thought.
I find the taking of instructions remotely far more challenging particularly the assessment of capacity. In clearcut cases this is not difficult but borderline cases are difficult. If the interview is on the phone we are not sure if anyone else is present. Online cases do not show all that are present and with older clients it is usual for someone else to set up the video link for them.
The challenges are not unsurmountable but when we return to normal times, willwriters will have a bigger box of tools to carry on their business.