Can you sign your Will with a Digital Signature?
Using an online Will service
At LegalWills.co.uk, you can create your Last Will and Testament entirely online.
Sometimes, people refer to this as an "Online Will" service, and it suggests that it is possible to prepare everything online,
including storing the document online for future retrieval by family, loved ones and your Executor. Unfortunately, estate planning laws
and the Wills Act don't get refreshed very often, and the law on how to write a Will hasn't changed fundamentally in over 150 years.
Even though you can prepare your Will online, it must still be printed and signed in the presence of two witnesses.
You can maintain an account with us, and this allows you to update your document quickly and easily to reflect any changes in your personal
and financial situation. It also allows you to easily update your Will if one of your appointments is no longer appropriate
(for example, if your Executor has taken ill). You can quickly login to your account and make the change.
However, every time you update your document, you must print the new document and sign it again in the presence of two witnesses to make
it a new, legal, Last Will and Testament.
What about a Digital Signature?
A digital signature is a convenient and secure way to sign an electronic document. They are based on mathematical theory and the use of algorithms.
They require that the holder of the signature have a "two key" system for signing and verification (one private and the other public).
The important component in this picture is in having a verifiable, trustworthy entity to create and distribute digital signatures.
These entities are called "Certification Authorities" (CA). The ability to transmit or store electronic messages and documents
carrying legally binding signatures will allow businesses, government and individuals to conduct transactions and to enter into binding contracts entirely by electronic means.
Can I use a Digital Signature on a Will?
The short answer is "No". UK estate planning laws that dictate the requirements of a legal Will are written into the 1837 Wills Act.
Not surprisingly, this law requires that a Will is written, usually on a piece of paper. Verbal Wills are not legal unless spoken under very
specific circumstances like military on a battlefield. This type of Will is called a Nuncupative Will.
The document must then be signed in the presence of two adults who are not beneficiaries in the Will. As long as the witnesses are also competent,
and they have nothing to gain from the contents of the Will, then once signed and witnessed, you have created a legal Last Will and Testament.
Currently, testamentary wishes written by email, in an app, video Wills, faxed, scanned, or any other electronic copy of a document, are all invalid Wills.
Also, don't be confused by the term "holographic Will", as this simply means that it is handwritten, it does not mean that the Will is presented by a hologram.
Can I store my Will at LegalWills.co.uk?
You can store a version of your document that makes it easy to update and change your Will to reflect any changes in your circumstances.
But this is not a legally acceptable Last Will and Testament. Your only legal document is one that is written, and usually printed on a piece of paper.
Then signed in the presence of two witnesses who also sign the document.
But can't a paper document be lost?
Yes, absolutely. Remember, this is a law that was written nearly 200 years ago. The clauses in the law that describe the validity of a Will
hasn't changed significantly since 1837. It states:
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
The Will must be in writing and signed. This means that the vast majority of Wills are written or typed on a piece of paper.
However, there have been some famous cases of people pinned under a tractor or rock who scratched out their own Will, and the document was accepted.
But this means that if you lose your life in a house fire or flood, your Will may well be lost with you. There are some Will storage services,
but these services typically make it awkward to update your Will.
We generally recommend that you give your Will to your Executor in a sealed envelope for safe keeping, particularly if they do not co-reside with you.
Is a signature really the best way to prove my identity?
No. It is a terrible way to prove your identity, particularly now that we have much better biometric and digital encryption technologies.
Most challenges to Wills are based on a claim of fraud. In other words, somebody has created a Will in the name of another person,
and copied their signature. When you look at some people's signatures, it is clearly a ridiculous way to validate and process an estate that
could be worth millions of pounds.
The process relies heavily on the two impartial witnesses. When a Will is validated, the courts must be sure that the testator
(the person for whom the Will is written) was competent, but also that they were signing without any undue influence, or outside pressure.
They must be signing the document understanding that it is their Will, and it represents their wishes absolutely.
The witnesses attest that there is no other influence on the signing of the document.
Any digital signature, video Will, or wishes captured in an app will always have that vulnerability.
The courts will never know whether the testator was expressing their wishes without outside influence.
If the Will is found to be fraudulent, then the fraudster and witnesses have committed a very serious crime and will almost certainly go to prison.
What is the future of digital signatures?
In July 2017, the Law Commission announced
that the 1837 Wills Act needed an update, and that the signing of Wills needed to be updated to reflect modern technology.
These processes typically take a very long time, but it is encouraging to see the legal profession acknowledge that signing a piece of paper is not the most
secure way to secure one's legacy.
We will be closely monitoring this review and we will be quick to implement any new technologies as soon as they are approved in law.