e-wills
– can we have the future now?
(29)
by
Roderick Ramage BSc(Econ), solicitor
first
published in New Law Journal on 28 February 2020
DISCLAIMER
This
article is not advice to any person and may not be taken as a definitive
statement of the law in general or in any particular case.
The author does not accept any responsibility for anything that any
person does or does not do as a result of reading it.
In
the USA the National Conference of Commissioners on Uniform State Laws provides
legislation for states to adopt and, at its annual conference in July 2019,
approved the Uniform Electronic Wills Act and recommended it for enactment in
all states: www.uniformlaws.com and navigate from the Search Acts button. This uniform act, when adopted,
will enable testators to
create, sign notarise, and execute a valid will online without the need for the
physical presence of another person and enables probate courts to give
electronic wills legal effect.
A
number of articles and notes speculate whether we should adopt a similar
law. The idea is not new. The Law Commission, 2017 consultation
paper 231, Making a will,
devoted chapter 6 to electronic wills. Contrary
to what some English commentators have written, the uniform act is not yet law
in any state, but several states have been exploring the possibility of
legislation: in 2001 Nevada passed an electronic statures bill, but it has not
been used for want of technology capable of meeting
the prescribed standards.
The
question which I ask is whether we can already make electronic wills without
further legislation.
statutory
requirements
The
Wills Act 1837 s9 enacts that, to be valid, a will must be in writing, signed by
or at the direction of the testator showing his intention to give effect to it,
and his signature must be made in the presence of two witness who must sign the
will in his presence. The section
now in force is copied in the box below.
“in
writing”
The Interpretation Act 1978 defines writing to include “typing, printing,
lithography, photography and other modes of representing or reproducing words in
a visible form …”. The Law
Commission in its 1991 advice on Electronic Commerce: formal requirements in
commercial transactions concluded that, although digital information, being
a series of off/on switches in a chip or some other invisible medium, is not
writing, the visible form on screen satisfies the Interpretation Act definition,
as does a print. This would not
however extend to a “fully” electronic will, ie a will which is not only made
electronically, but is stored and admitted to probate electronically.
“signed”
A name typed at the end of an email can be a valid signature (Golden Ocean Group
v Salgaocar Mining [2012] EWCA Civ 265) but a name inserted automatically is not
a signature because it does not evidence an intention to authenticate the
document (Pereira Fernandes v Mehta [2006] EWHC 813 (Ch)).
The Law Commission in its 1991 advice is ambivalent whether an electronic
signature satisfies the Wills Act requirement and on balance concludes that it
does not. The main obstacle is the
decision in Lim v Thompson [2009] EWHC 3341 (Ch), in which the judge held that a
photocopy of a signed will did not meet the requirement: “… it is very important
that what must survive is an original signature …”.
The Law Commission in its 2017 consultation paper commented at 6.23:
“However,
electronic signatures might be seen in a different light, particularly where
they are more secure than a simple typed name. The case law does not
conclusively resolve the issue of whether an electronic signature could meet the
requirements of the 1837 Act.”
The Law
Commission’s doubts whether a qualified electronic signature under the EU
Regulation (No. 2014/910) on electronic identification etc or an electronic
signature under the Electronic Communications Act 2000 apply to the signature of
a will because (at 6.26) they “apply in a commercial and transactional context”
and (at 6.28) because a qualified electronic signature
is equivalent to a handwritten signature to “validate one counterparty’s
identity to the other” while “the unilateral nature of wills means that a
signature on a will performs a distinct function “.
In para 6.30 the Commissions “view is that the Regulation does not
require a qualified digital signature to be recognised as a valid signature on a
will.”
“presence”
The requirement for the presence the testator and witnesses, which must both
physical and mental (re Chalcraft [1948] 1 All ER 700), can be met, but
precludes eg witnessing by video conferencing.
“intention”
Extrinsic evidence can be admitted to determine the testator’s intention: re
Beadle [1974] All ER 493.
conclusion
There
is little doubt that the formal requirements of the Wills Act 1837, other than
that for signing, can be satisfied by an electronic will viewed on screen and
executed electronically, and one an optimist could reasonably reach the
opposite conclusion to the Law Commission on the signature question. One The
optimist might argue that:
(a)
while
codified legal systems require express permission to do things, our common law
leaves us free to do what we wish unless expressly forbidden, so “I may execute
my will how I wish”, and there is no place in common law for the assertion by
the Law Commission in para 6.30 of its 2017 consultation paper quoted above;
(b)
the
conclusion in Lim is applicable to the facts of the case because of the
suspicion of fraud on the part of the plaintiff (see in particular para 10 of
the judgment) and that, in the absence of circumstances such as those in Lim, the
presumption of due execution would apply (Sherrington
v Sherrington [2005] EWCA Civ 326); and
(c)
the
security objection in Lim is met by the secure nature of the testator’s and
witnesses electronic signatures.
It
would be a brave testator and solicitor who would make a will in this way, but
perhaps a dedicated (and well to do) citizen and would-be benefactor of the
e-world might make such a will, but, if I were his solicitor, I would recommend
the precaution of first making a normal paper will, ensuring that neither can
revoke the other, but not propound it unless probate of the e-will is
refused.
|
Wills
Act 1837 9.
Signing and attestation of wills. No
will shall be valid unless— (a) it is in writing, and signed
by the testator, or by some other person in his presence and by his
direction; and (b) it appears that the testator
intended by his signature to give effect to the will;
and (c) the signature is made or
acknowledged by the testator in the presence of two or more witnesses
present at the same time; and (d) each witness
either— (i) attests and signs the
will; or (ii) acknowledges his
signature, in
the presence of the testator (but not necessarily in the presence of any
other witness), but
no form of attestation shall be necessary. |
END
(21/02/20)
copyright
Roderick Ramage
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