E Signatures & Wills – Is it actually going to happen?

Whilst most areas are moving forward with electronic documents, signatures and paperless processes the area of Wills is still heavily reliant upon paper.

This is because Section 9 of the Wills Act 1837 requires a Will be in writing and signed by the testator. The Probate Registry also require an original copy of the Will in order to issue a Grant of Probate. If the original Will cannot be found then the Probate Registry’s permission is needed to rely upon a copy of a Will.

This means that as it stands a Will must be printed off, signed and stored.

It is however recognised that there would be an advantage to Wills being signed with E- Signatures as it would mean that they could be signed more quickly and that storage and location of the Will may not be an issue.

However there are rightly concerns regarding the use of E-Signatures for Wills which may make it much easier to prepare a fraudulent Will or change an existing Will. It is however noted that many of the arguments currently used in order to contest a Will such as the lack of capacity or undue influence would remain the same regardless of whether or not the Will was signed using an E Signature.

If E -Signatures were to be allowed it may be the case that whilst parties may currently need to get expert hand writing evidence they may in the future need to obtain evidence upon how the E-Signature was obtained.

What can E Signatures they currently be used for?

Regulation (EU) No 910/2014 (eIDAS) already says that an electronic signature cannot be denied legal validity simply because it is electronic, and that electronic signatures are admissible in evidence in legal proceedings, but it has not been widely cited in case law.

The Law Commission are however pushing forward with the implementation of E -Signatures in all areas and a recent report confirmed that electronic signatures can be used for legal documents.

What is an E-Signature?

The European Commission defines it as ‘an electronic indication of a person’s intent to agree to the content of a document or a set of data to which the signature relates’

The basic forms of electronic signatures are simply typed names and digital images of handwritten signatures which are clearly too simple and susceptible to fraud. Other more secure E -Signatures are ones which involve passwords, PINs, biometric signatures and encrypting keys.

When can we expect to be using them?

As the topic seems to be on the Law Commissions agenda it’s expected that one day it may well become common practice.

However before it becomes common practice there would need to be change in legislation allowing this and suitable technology in place providing security. Whilst the technology may be possible in order for change in legalisation to be made there may need to be progress in the use and security of electronic signatures. However in an era where you can secure your phone with your finger print the technology may not be a problem.

Even though it may be sometime before a Will can be signed electronically there no reason why other documents used in the will writing process cannot be signed electronically. In an area of law where time is of the essence, in order to ensure that Wills are created within an appropriate time frame the use of electronic signatures can streamline and speed up this process ensuring that it is more efficient and any delay in waiting for instructions is reduced.

If you would like more information relating to Wills & probate matters, please contact kathryn.caple@elselaw.co.uk or call her on 01283 526 200.

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