www.newlawjournal.co.uk | 28 February 2020 Wills & PROFESSION 19

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Signed, sealed & e-delivered?

E-wills: Roderick Ramage asks whether we can have the future now

IN BRIEF Statutory requirements not, however, extend to a ‘fully’ electronic ffA speculative argument that the formal The 1837, s 9 enacts that, to be will, ie a will which is not only made requirements of the Wills Act 1837 can be satisfied by an electronic will viewed on screen valid, a will must be in writing, signed by electronically, but is stored and admitted to and executed electronically. or at the direction of the testator showing probate electronically. his to give effect to it, and his signature must be made in the presence of Signed n the US the National Conference of two witnesses who must sign the will in his A name typed at the end of an email can Commissioners on Uniform State Laws presence. The section now in force is copied be a valid signature (Golden Ocean Group provides legislation for states to adopt in the box on the next page. v Salgaocar Mining [2012] EWCA Civ 265) Iand, at its annual conference in July but a name inserted automatically is not 2019, approved the Uniform Electronic a signature because it does not evidence Wills Act and recommended it for The question which an intention to authenticate the document enactment in all states: www.uniformlaws. I ask is whether we (Pereira Fernandes v Mehta [2006] EWHC com and navigate from the Search “ 813 (Ch)). Acts button. can already make The Law Commission in its 1991 This Uniform Act, when adopted, will advice is ambivalent whether an enable testators to create, sign notarise, electronic wills electronic signature satisfies the Wills Act and execute a valid will online without the without further requirement and on balance concludes need for the physical presence of another that it does not. The main obstacle is the person and enables probate courts to give legislation” decision in Lim v Thompson [2009] EWHC electronic wills legal effect. 3341 (Ch), in which the judge held that a A number of articles and notes speculate photocopy of a signed will did not meet whether we should adopt a similar law. the requirement: ‘… it is very important The idea is not new. The Law Commission, In writing that what must survive is an original 2017 consultation paper 231, ‘Making The Interpretation Act 1978 defines signature …’. a will’, devoted chapter 6 to electronic writing to include ‘typing, printing, The Law Commission in its 2017 wills. Contrary to what some English lithography, photography and other modes consultation paper commented at 6.23: commentators have written, the Uniform of representing or reproducing words in a ‘However, electronic signatures might be Act is not yet law in any state, but several visible form …’. The Law Commission in seen in a different light, particularly where states have been exploring the possibility its 1991 advice on ‘Electronic Commerce: they are more secure than a simple typed of legislation: in 2001 Nevada passed an formal requirements in commercial name. The case law does not conclusively Electronic Statutes , but it has not been transactions’ concluded that, although resolve the issue of whether an electronic used for want of technology capable of digital information, being a series of off/on signature could meet the requirements of meeting the prescribed standards. switches in a chip or some other invisible the 1837 Act.’ The question which I ask is whether we medium, is not writing, the visible form The Law Commission’s doubts whether can already make electronic wills without on screen satisfies the Interpretation Act a qualified electronic signature under the further legislation. definition, as does a print. This would EU Regulation (No 2014/910) on electronic 20 PROFESSION Wills & probate 28 February 2020 | www.newlawjournal.co.uk

identification etc or an electronic signature than that for signing, can be satisfied by and would-be benefactor of the e-world under the Electronic Communications Act an electronic will viewed on screen and might make such a will, but, if I were his 2000 apply to the signature of a will because executed electronically, and one could solicitor, I would recommend the precaution (at 6.26) they ‘apply in a commercial and reasonably reach the opposite conclusion of first making a normal paper will, transactional context’ and (at 6.28) because to the Law Commission on the signature ensuring that neither can revoke the other, a qualified electronic signature is equivalent question. One might argue that: but not propound it unless probate of the to a handwritten signature to ‘validate one (a) while codified legal systems require e-will is refused. NLJ counterparty’s identity to the other’ while express permission to do things, our ‘the unilateral nature of wills means that leaves us free to do what a signature on a will performs a distinct we wish unless expressly forbidden, so Wills Act 1837 function’. ‘I may execute my will how I wish’, and 9. Signing and attestation of wills. No will shall be valid unless— In para 6.30 the commission’s ‘view there is no place in common law for the (a) it is in writing, and signed by the testator, is that the Regulation does not require a assertion by the Law Commission in or by some other person in his presence qualified digital signature to be recognised para 6.30 of its 2017 consultation paper and by his direction; and as a valid signature on a will’. quoted above; (b) it appears that the testator intended by (b) the conclusion in Lim is applicable to his signature to give effect to the will; and Presence the facts of the case because of the (c) the signature is made or acknowledged The requirement for the presence the suspicion of fraud on the part of the by the testator in the presence of two testator and witnesses, which must both plaintiff (see in particular para 10 of the or more witnesses present at the same physical and mental (re Chalcraft [1948] 1 judgment) and that, in the absence of time; and All ER 700), can be met, but precludes eg circumstances such as those in Lim, the (d) each witness either— (i) attests and signs the will; or witnessing by video conferencing. presumption of due execution would (ii) acknowledges his signature, apply (Sherrington v Sherrington [2005] in the presence of the testator (but not Intention EWCA Civ 326); and necessarily in the presence of any other Extrinsic evidence can be admitted to (c) the security objection in Lim is met by witness), determine the testator’s intention: re Beadle the secure nature of the testator’s and but no form of attestation shall be [1974] All ER 493. witnesses electronic signatures. necessary.

Conclusion It would be a brave testator and solicitor There is little doubt that the formal who would make a will in this way, but Roderick Ramage is a solicitor in private practice at www.law-office.co.uk. requirements of the Wills Act 1837, other perhaps a dedicated (and well to do) citizen

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