It’s not a matter of if, but when there will be a shift in the law to allow wills to be signed electronically.
A new bill due for publication next month should make the situation clearer, and there is an opportunity here for the government to take bold steps towards modernising this important area of law.
Regular readers of Today’s Wills and Probate will be aware that next month the Law Commission is due to publish a final report and draft bill based on years of consultation on the future of wills.
Debate about shifting to electronic wills has been rumbling on for some time. A review conducted in 2017 concluded that the case for making and storing wills electronically was ‘novel’ and that the time was not right to introduce changes.
A second consultation conducted in 2023 took into account rapid advances in digital signing technology and the temporary changes introduced during the pandemic and concluded that the question is now “how and when bespoke requirements for electronic wills should be introduced”.
Wills remain one of the few legal documents still required by law to be signed in pen and ink in the UK.
In England and Wales, the signing and witnessing of these important documents must follow the requirements of the Wills Act 1837.
This law, enacted the year Queen Victoria ascended to the throne, requires a witness to have a ‘clear line of sight’ of the will-maker signing, meaning that use of video conferencing is not allowed.
This rule was relaxed during the Covid-19 pandemic due to an increase in the number of people seeking to make wills.
Social distancing rules, shielding and self-isolation made it difficult for people to meet the normal legal requirement for their will to be witnessed in person by two people, so the government introduced a temporary amendment to the law allowing wills to be witnessed via the virtual presence of a video link instead of in person.
This amendment expired in early 2024, meaning a return to in-person witnessing of wills.
But a recent ruling over a disputed will has underlined the benefits of creating video evidence of the signing and witnessing of wills.
Today’s Wills and Probate recently reported how video evidence was central to a son’s successful legal challenge to the validity of his late mother’s £700,000 will.
Video evidence played in court showed the man’s 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.
The case demonstrates how using video evidence alongside robust electronic signatures can be used to prove the validity of wills.
Although there has been hesitation for years over the future of wills, my view is that the time is right for a change in the law.
Advances in digital signature technology and video meeting platforms mean that an electronic will can be more secure and robust than the traditional ‘wet ink’ document.
Signing and witnessing via video conferencing – when done properly – provides an unprecedented level of proof and assurance that a will is genuine in every way.
Changes introduced during the pandemic, although temporary, provided a valuable demonstration that signing a will electronically works.
Virtual witnessing has the potential to offer the highest level of security to a will, with a recording of the signing and witnessing taking place, and other data such as date stamps and IP addresses recorded.
There is even the option to use AI tools to verify the identity of all parties to provide extremely robust evidence that a will is genuine.
Digital signatures and video evidence have the power to add transparency to the will-making process and dramatically reduce probate disputes – it’s time for the law to catch up and embrace the simplicity, convenience and security that electronic wills can offer.
After years of discussion and consultation, now is the time for the government to drag will-making out of the dark ages.
