by Emma Paul, Trainee Solicitor
The ongoing Coronavirus Pandemic has meant that we are all leading increasingly digital lives – from banking and shopping to spending time with family. The pandemic has also highlighted an increased need for legal transactions to be carried out using digital means.
The Coronavirus (Scotland) Act 2020 enacted several provisions to enable this, including permitting the use of e-signatures on certain documents and allowing certain hearings and tribunals to be carried out remotely. Changes were also enacted within the conveyancing sector, with Registers of Scotland facilitating the digital submission of Land Register deeds. The 2020 Act does briefly touch on succession law, providing that, for the time being at least, the witnessing of wills may be conducted via audio-visual link.
Aside from this recent development, the practice of making wills has remained largely unchanged since 1861 when the first Wills Act was passed. To be valid, a Will must be in writing and subscribed. In practice this means that wills are printed on paper and signed with ink but there is still some room for error in this traditional method. The potentially difficulties involved in the requirement for physical wills have only been exacerbated during the pandemic, where we have seen witnessing taking place over garden fences and Zoom calls and testators pestering family members at the last minute to see who has a functioning home printer.
Now more than ever, practitioners feel that there is a strong case for digital wills. There are several elements to consider regarding how the digital will would look and function in practice. In her paper for STEP, Kimberley Martin defines a digital will as ‘a will that is created, signed and stored electronically.’ Martin’s definition is broad and allows us to imagine the digital will as anything from pdf, to a text message or even a TikTok dance.
A review of international case law shows that testators are increasingly making informal digital wills with the use of their computers and mobile phones. For example, the Canadian case Rioux v Coulombe concerned an unprinted word document and the Australian case, Nichol v Nichol considered an unsent text message; in both cases, the courts held these digital items to be valid testamentary documents and admitted them to probate.
While these cases are exceptional and concern informal wills, they do highlight the need for our wills to be adapted for an increasingly digital world. To consider how a formal digital will would look and function, we can consider the three elements noted by Martin.
Solicitors already utilise a range of digital tools to draft wills and as such the creation element will likely remain unchanged. We utilise word processing, cross-referencing and auto-fill tools to assist the drafting process, which ensure that wills are accurate, easy to understand and can be edited promptly.
Even before the pandemic, the requirement of a wet signature could be impractical, for instance if your client is overseas. Electronic signing tools can ensure signing is correct and that any errors can be promptly remedied. E-signatures are also more convenient when witnessing is conducted via audio visual link.
While many legal documents are now stored on online databases, for example the Land Register of property title deeds, wills still live on paper with a printed, signed, paper copy stored safely under lock and key until the client passes away. Storing a principal will electronically offers an additional layer of security; it is also more easily accessible and expedient. Provided there are stringent security rules, electronic storage is a major benefit of the electronic will.
Digital wills do not need to signify a radical overhaul to estate planning process so we are pretty positive we won’t be preparing TikTok wills for our clients any time in the future. At present we already use digital tools to create wills and the next logical step is to extend this into the execution and storage stages. Our clients expect wills that are professional, accurate and secure. The case for digital wills is that they will allow us to further enhance the service we provide, in a way that is more at home in the twenty-first century.
- Kimberley Martin, ‘Technology and Wills – The Dawn of a New Era’
- Rioux v Coulombe (1996), 19 E.T.R. (2d) 201
- Nichol v Nichol  QSC 220