Digital Wills: How the Law of Wills Responds to the Electronic Era
August 15, 2017
BY Allison Curley
This series examines and compares recommendations made in several BCLI reports and those made by the Law Commission of England and Wales. To read the other posts in the series click here.
Until comparatively recently, a will written on anything but paper or another tangible surface would have been a bizarre concept. As technology continues to advance, however, the need grows for law to be current and responsive to technological development. Not unlike other areas of law, the law of wills has been under scrutiny in relation to the influence of technology on society.
In their recent consultation paper entitled Making a Will, the Law Commission of England and Wales examines the issue of digital wills and other aspects of the impact of technology on the law of wills. In this post, the provisional proposals made by the Law Commission in their consultation paper are compared to the BCLI’s recommendations on recognition of digital wills in our report, Wills, Estates and Succession: A Modern Legal Framework (“2006 Succession Law report”).
What is a Digital Will?
The Law Commission’s consultation paper notes that technology may be used in a number of ways to create a will. A will can be, and often is, drafted using word processing software. Even further, digital signatures might be used to execute and attest a will electronically, although not under existing law. Finally, a will conceivably could be drafted, executed, and stored exclusively on an electronic file. The Law Commission refers to this as a “fully electronic will.” The Law Commission states that, “[s]ince technology is already widely used to prepare hard copy wills, the intuitive next step is to develop our capacity to execute wills electronically and make use of fully electronic wills.”
Identified Advantages of the Digital Will
The Law Commission identifies several advantages associated with the use of technology in will-making:
- Creating wills would become quicker and easier;
- A more convenient process would encourage more people to make wills;
- People with disabilities might find online communication with a solicitor more accessible;
- People in isolated communities might be able to access a solicitor’s services to create a will;
- Electronic wills would be easier to amend;
- Electronically saved wills would increase security and prevent accidental destruction.
The Law Commission describes the benefits of reforming the law to recognize fully electronic wills in these terms: “[i]t is possible to imagine a situation in which an electronic will could be created and executed online, electronically checked to ensure that it complies with the formality rules (at least, on its face), and then stored ready to be submitted for probate in electronic form automatically and efficiently on the testator’s death.”
BCLI’s Recommendations on Digital Wills
BCLI’s 2006 Succession Law Report noted that, “[c]oncerns surrounding electronic wills have centred on the protective and evidentiary purposes: the authenticity and security of electronic, or digital, documents and signatures, given the perceived ease of manipulation of electronic data.” In answering these objections, however, BCLI emphasized that it is necessary to understand the nature of a digital signature, which makes falsification extremely difficult. The report explained how a digital signature is generated by mathematical algorithms that cannot be unwound without a digital key. It noted that the ABA’s Science and Technology Section has concluded that digital signatures can identify a signed message “with far greater certainty and precision than paper signatures.”
When considering the topic of digital wills and possible law reform recommendations, members of BCLI’s Succession Law Reform Project identified and considered three options:
- Maintaining the status quo under which digital wills are invalid;
- Extending full recognition to digital wills; and
- “Adopting the middle ground of the 2003 amendment to the Uniform Wills Act and dealing with electronic wills under the [curative] dispensing power.”
The last identified option refers to the 2003 amendments to section 19.1 of the Uniform Wills Act by the Uniform Law Conference of Canada. This option was chosen as the basis of the recommendation relating to digital wills found in the BCLI Succession Law report, which treated a digital will as formally defective, but potentially curable under a provision that would allow the court to “dispense” with formal invalidity and admit a testamentary document to probate despite formal defects if its authenticity and finality can be proven to the court’s satisfaction. That provision is now section 58 of the B.C. Wills, Estates and Succession Act (WESA). In keeping with the BCLI recommendation, the following extended definition of “record” appears in s. 58 to bring digital documents within the scope of the dispensing power:
“In this section, “record” includes data that
- is recorded or stored on any medium in or by a computer system;
- can be read by a person, and
- is capable of reproduction in a visible form.”
The BCLI recommendation made in 2006, and its implementation in s. 58 of WESA, are transitional in the sense that they represent an intermediate state between the conventional law of will formalities and full acceptance of digital wills.
The Law Commission on Digital Wills
On the topic of digital wills, the Law Commission focusses on issues related to electronic signatures and identifies three “core” issues:
- Electronic signatures must be secure;
- “The infrastructure required to support electronic will-making must be viable, both technologically and commercially”; and
- There should be some consistency across different platforms for will-making.
The Law Commission notes that, “[t]he issues of security, viable infrastructure, and consistent implementation all indicate that a balance needs to be struck between regulating electronic wills and allowing enough flexibility in the law for electronic wills to develop.”
The provisional proposal by the Law Commission is that, “an enabling power should be introduced that will allow electronically executed wills or fully electronic wills to be recognised as valid, to be enacted through secondary legislation.” However, the Law Commission also provisionally proposes that “electronic signatures should not be capable of fulfilling the ordinary formal requirement of signing a will that applies to both testators and witnesses (currently contained in section 9 of the Wills Act 1837).” The Law Commission asserts in its consultation paper that legislation should be introduced that would make it clear that electronic signatures do not satisfy the present-day signature requirement in the law of wills.
Both BCLI and the Law Commission concluded that the law of wills requires reform in light of increasing digitalization throughout society. Both BCLI and the Law Commission agree that digital wills should be treated as valid in certain circumstances.
While BCLI and the Law Commission agree with respect to the validity of digital wills, the two law reform agencies have divergent opinions about the use of electronic signatures. Members of BCLI’s Succession Law Reform Project indicated a level of comfort with the use of electronic signatures in the context of will-making, and pointed to outside literature that suggests that electronic signatures can be extremely secure. In contrast, the Law Commission suggests in its consultation paper that electronic signatures should not satisfy the legislative signature requirements in will-making.
Next weeks’ post will discuss undue influence, and how BCLI and the Law Commission of England and Wales dealt with this subject in their respective projects on reform of wills law.