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
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.
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  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  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  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  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  All ER 493.
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  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.
copyright Roderick Ramage
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