Our team is mostly working from home and meeting clients remotely. The Coronavirus (Scotland) Act 2020 enacted several provisions to enable the legal profession to carry out much work virtually; e-signatures are now permitted on certain documents and some court hearings and tribunals are taking place remotely.
The Act briefly touches on succession law, providing that, for the time being at least, wills may be witnessed via audio-visual link. In uncertain times, many clients have been prompted to make or update wills and the ability to witness these over platforms such as Zoom has been hugely beneficial.
Under Scots law, to be valid, a will must be in writing and signed by the granter. There are further requirements if the will is to be “self-proving” such that there is no need to go to court to prove its authenticity. These include the granter signing every page and having their signature witnessed; the witness should sign the last page of the will, with details of their full name and address added.
In practice, wills are printed on paper and signed with ink, a method which leaves room for error. Potential difficulties have been exacerbated during the pandemic, with witnessing taking place over garden fences and testators pestering relatives for the use of a home printer.
More than ever, practitioners see a strong case for digital wills. In a paper for the Society of Trust and Estate Practitioners, Kimberley Martin defines a digital will as one ‘created, signed and stored electronically.’ Martin’s definition is broad and allows us to imagine the digital will as a pdf, text message or even TikTok dance.
International case law shows testators increasingly using computers and mobile phones to create informal wills. In Rioux v Coulombe, the Court in Quebec held that an unprinted, unsigned word document was a satisfactory testamentary document. In Nichol v Nichol the Supreme Court of Queensland ruled in favour of admitting an unsent text message to probate.
These cases are exceptional and concern informal wills, but highlight the need for the law to be adapted for the digital world. To consider how a formal digital will would look and function, we can consider elements noted by Martin.
Creation: Solicitors already utilise digital tools to draft wills and as such this stage of the process would likely remain unchanged. We use word processing, cross-referencing and auto-fill tools to assist the drafting process, which ensure wills are accurate and can be easily updated.
Signature: Even before the pandemic, the requirement of a wet signature could prove impractical, for instance if your client was overseas. Electronic signing tools ensure signing is carried out correctly and that any errors can be promptly remedied.
Storage: Wills generally still live on paper with a principal copy stored in the solicitor’s safe. Provided there are stringent security rules, electronic storage would be a major benefit of the electronic will, in terms of both security and accessibility.
Wills going digital will not radically overhaul the estate planning process; and as such, we are pretty positive that we won’t be preparing TikTok wills for our clients any time in the future...although we would relish the challenge.
The real case for digital wills is that they will allow us to further enhance the service we provide, in a way more at home in the 21st century.
Emma Paul is a Trainee Solicitor, www.turcanconnell.com