Comment: Wills must still be written and witnessed

The Sheriff Court in Scotland is very strict when it comes to assessing the formal validity of a will. Picture: TSPL
The Sheriff Court in Scotland is very strict when it comes to assessing the formal validity of a will. Picture: TSPL
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WILLS made electronically are not valid – yet, says Peter Shand

Our lives are becoming increasingly “digitalised” and “paperless”. The majority of us now do all of our banking online and cheques are becoming a thing of the past. The internet age has transformed the way we communicate and the majority of business is now conducted by e-mail rather than by paper and pen.

But there are still one or two things in the legal world that insist on an old-fashioned wet signature, and signing your will is one of them. In Scotland, a will is supposed to be signed at the foot of every page and failure to do so can lead to complications when it comes to winding up someone’s estate.

So how would the law cope if someone decided to complete their will “online” rather than in ink?

The courts in another Commonwealth jurisdiction were asked to apply their minds to just that question in a recent case, which concerned a will which was written on someone’s iPhone. The legal conundrum, which came up in the Supreme Court of Queensland, Australia, was whether an electronic will, which had been saved on to a smartphone, could be admitted to probate and implemented on the wind-up of the deceased’s estate.

In that case, a young man, alone and suffering an intense personal crisis, tapped various farewell letters to friends and family, followed by his will, on the notes app of his iPhone. Not long after, he took his own life. The deceased’s brother, who was one of the executors nominated in the purported will, applied to the Supreme Court of Queensland for the provisions in the iPhone will to be respected.

Generally, in Australia, as in Scotland, a will is not valid unless it is in writing and signed by the person making the will in the presence of two or more witnesses. In Scotland, the requirement is for one witness and the will needs to be signed on every page.

The legislation in Australia, however, includes an override provision which gives the courts powers to dispense with the formal requirements for the execution of a will in special circumstances. The legislation says that as long as there is a document which purports to summarise the deceased’s instructions, and the court is satisfied that the deceased intended it to represent his last will and testament, the court might admit the document. The meaning of “document” is getting wider as the Australian courts contemplate records such as audio recordings, wills recorded on a webcam and digital or online extracts.

In considering whether to admit a particular “document”, Australian courts generally have regard to evidence about the way the document was executed and any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

In the end, the court in the Australian case was satisfied that the iPhone will constituted a “document” and they admitted it, notwithstanding the general rules on formal writings. They were convinced that the iPhone record set out the deceased’s testamentary intentions as it dealt with the whole of his property, and made arrangements for its distribution at a time when the deceased was tragically contemplating his death.

In Scotland, however, such informality will not, for the time being, get past the courts. The Sheriff Court in Scotland is very strict when it comes to assessing the formal validity of a will, and the will must still be signed, witnessed and dated. Otherwise, it risks being rejected and the estate will be treated as if no will had been made at all.

Whilst the Scottish Law Commission did, as far back as 2009, consider introducing curative powers, equivalent to the Australian ones, the idea was rejected on the grounds that such extraordinary powers would lead to “hopeless litigation” and “increased prospects of fraud” as claims inevitably arose from disappointed beneficiaries and family members. It is also easy to see that opening up the definition of what constitutes a “document” on someone’s death makes the task of establishing someone’s testamentary intentions much more difficult for executors, whose task is already onerous and charged with fiduciary responsibility.

So it seems unlikely, in Scotland, that lawyers will be asked to recognise wills drawn up on clients’ computers, tablets, iPhones or in the cloud. However, the digital era is full of innovation, is it not? #watchthisspace #digitalwills
• Peter Shand is a partner at Murray Beith Murray