We live in a society where technology is prevalent in many aspects of life and continues to develop every day. Many favour technology over ’old-fashioned’ paper for reasons such as ease, speed and simplicity.
There have been several recent cases in other jurisdictions, Australian states in particular, regarding paperless wills. The Queensland Supreme Court has heard various cases on wills in a digital format and can dispense with execution formalities (rules dictating how the document must be signed) if the court considers that it is clear what the testator wanted to happen on their death. For example, in Nichol v Nichol  QSC 220,the court concluded that an unsent text message constituted a will, as the testator was adamant his brother would inherit everything after his wife returned to an ex-partner, and in Radford v White  QSC 306, it was held that a video recording of the testator’s wishes was admissible as he detailed his desired distribution of his estate. It is also worth noting that there is a law reform project under way in England and Wales on this topic.
This raises the question, could a paperless will be effective in Scotland? In short, the answer is no. Under Scots law, a will must have three essential components:
- the testator must have capacity (to understand what they are signing and the implications);
- the document must show testamentary intention (that the document is intended to be a will); and
- the document must be subscribed (signed) by the testator at the end of the document. If the Will is to be probative, that is to say it proves its own authenticity, the Will should be signed by the testator on every page and attested by one witness with the witness’s name and address being noted.
A will that meets the above requirements can be submitted to the court to obtain the grant of confirmation (the document required to transfer ownership to the executors of the estate to allow them to implement the terms of the will). The requirements may appear stringent, but they are designed to safeguard the testator.
If any of the requirements are not met, extrinsic evidence must be produced to demonstrate to the court that the document should be admitted as a will. This is onerous, in terms of time and expense, and might be rejected. Based on the current position, it would not be possible to successfully argue that a paperless will is admissible in Scotland as the second requirement cannot be fulfilled. In the absence of a will, the estate falls into intestacy and the division of the estate is governed by rules set out in legislation, which could defeat the testator’s wishes entirely.
The notion of a paperless will might appear attractive at first sight to the busy, technology-savvy testator, but in reality it is a little daunting. It could be difficult to be certain that the testator had capacity and/or was not unduly influenced by others. In addition, without full provisions, the will is unlikely to deal properly with family succession planning or take into account tax considerations.
There is an ongoing consultation on Scottish succession law, and we might expect to see advances in respect of technology in the future. However, it seems unlikely that the rules relating to wills might change to include scope for paperless wills anytime soon. It is therefore crucial that individuals putting a will in place give proper consideration to the matter and obtain professional advice.