We have been living in the “digital age” since the 1970s but, with the law on Wills predating this era -The Succession (Scotland) Act 1964, in Scotland, and The Wills Act 1837, in England - it’s fair to say that the rules for creating a Will are more than a little behind the times. With many aspects of our lives now conveniently managed using technology, there is no doubt that we increasingly expect to be able to do so. However, while technology is widely used to prepare hard copy Wills, there is, as yet, no recognition of electronically executed or stored Wills. With The Law Commission of England and Wales currently consulting on the introduction of Electronic Wills, it may not be long until Will writing catches up with the times.
An Electronic Will could take a variety of forms. It may be that some form of electronic signature could be used to execute the Will but then it would continue to be stored in hard, paper form. Perhaps the Will would be entirely electronic – i.e. both executed and stored electronically. Moving away from the traditional word format, video Wills present a further option.
The ability to execute a Will electronically holds a number of benefits for testators in terms of convenience, security, and cost saving. The use of this technology has the potential to make Wills quicker and easier to make. An electronic signature may also offer greater protection against forgery than one that is handwritten. Currently only around half of UK adults have made a Will but if will-making can be made more convenient, testators might find it easier to exercise their testamentary freedom. However, while there may be secure methods of electronic signature, it appears that the most basic electronic signatures, such as typed names and digital images of handwritten signatures are easily copied and susceptible to fraud. The more secure, complex types (e.g. passwords, PINs, biometric signatures and encrypting keys) present their own challenges and would require significant specialised infrastructure.
Paper Wills can be misplaced, stolen or accidently destroyed. Wills both executed and stored electronically would not suffer from these problems. Such entirely electronic Wills may also be easier to amend once signed which would enable testators to keep their Will up-to-date with changes in their personal circumstances.
Unfortunately, the digital age has introduced new threats to information. Hackers are the digital thieves and obsolescence caused by constantly evolving technology plays substitute for accidental destruction. These issues could be combatted if Will storage was undertaken by a Government authorised body that could take responsibility for storing electronic Wills (possibly on a central register) so that they remain accessible decades into the future and put in place mechanisms to reduce the risk of hacking.
Current legislation requires a Will to consist of “words in visible form” but a video recording may provide a suitable alternative. A video Will would be a unilateral declaration of the testator’s wishes and, with video and audio to provide proof of identity, there would be no need for a signature. The video would also show capacity at the time of making the Will. Once more, storing the Will in a format that will not become inaccessible over time is a challenge that would need to be overcome. There is a further risk that the language used by the testator may not be sufficiently precise. A spoken Will would need to be well scripted in order to provide clear and complete instructions.
There are certainly challenges for will-making in joining this brave new world. However with law reform bodies considering the question it seems that we can expect “E-Wills” to be part of the future. It will nevertheless undoubtedly take numerous years before the required legislation and technology can be put in place. In the meantime, putting in place a Will the old-fashioned way remains the only way of providing certainty for the future.