A new report and draft bill published last week could pave the way for electronic will-making to be introduced in England and Wales.
It’s a change in the law that I’ve been hoping to see for some time, and one that has the potential to make will-making more secure and convenient than ever.
Will-making is currently governed by the Wills Act 1837, which requires wills to be signed in pen and ink and witnessed in person by someone with ‘clear line of sight’ of the person signing.
These rules mean wills remain one of the few legal documents that can’t be signed and witnessed online.
It’s strange to think that with all of the modern technology available to us, making a will is still governed by a law that was made the year Queen Victoria ascended to the throne.
Keeping up
This is an area of law that simply hasn’t kept up with the times, and leaves us exposed to the risk of fraud and disputes at the already emotionally-charged time of losing a loved one.
But a new report from the Law Commission of England and Wales contains proposals to allow wills to be made, signed, and witnessed remotely, alongside a draft bill that has been sent to the Government for consideration.
The proposed new law contains tough safeguards that will, if introduced, make will-making more secure than ever (not to mention more convenient and accessible).
Reassuringly, the Law Commission has recognised that digital signatures are an essential component of ensuring that these important documents are secure and trustworthy.
Explaining the electronic signature
For those unfamiliar with this area of security, it’s important to understand that not all signatures made online are the same.
‘Electronic signature’ is a catch-all term that refers to any form of signature made on a document using a computer or mobile device.
Some electronic signatures (such as a scanned autograph included in a word processor file) are very insecure and open to misuse.
But there’s a subset of electronic signatures known as ‘digital signatures’ that are secured with tamper-proof seals containing information about who signed, when, and how, to provide reassurance that a signed document is genuine.
Proposals from the Law Commission include a requirement for use of digital signatures in order for a virtual will to be considered valid, alongside systems to identify documents and protect them from unauthorised amendment or deletion.
The commission has also recommended that video calls should be allowed for witnessing signatures.
This will mean that the potential is there for the entire virtual will-making process to be captured on video to add an extra layer of security and assurance.
Dispelling doubts about the benefits
If any doubts remain about the potential benefits of virtual wills, a recent case should dispel them. Earlier this year a son successfully challenged the validity of his mother’s will after video evidence showed his sister placing a pen in their dying mother’s hand and physically moving it to sign over her entire estate.
The judge in the case ruled that the will was invalid, and that the mother’s hand had been physically manipulated to sign the document.
It’s a powerful example of how technology can be used to ensure that our final wishes are carried out – so let’s hope that the Government seizes this opportunity to drag will-making out of the Victorian era.