The Uniform Electronic Wills Act, otherwise known as the "E-Wills Act", has been passed in the United States. But will this latest digital development ever catch on in the UK? Angela McCulloch of Brodies LLP investigates.

What is the Uniform Electronic Wills Act?

An increasing amount of modern life is carried out online. This fact has been embraced by the US with the passing of the Uniform Electronic Wills Act ("E-Wills Act") in July 2019 by the Uniform Law Commission - the US body charged with developing and promoting uniform legislation in areas of state law where uniformity is desirable and practical.

The E-Wills Act permits testators to create, sign notarise, and execute a valid will online and allows probate courts to give electronic wills legal effect. But could we ever see the same e-system here in the UK?

Are the legal requirements for wills the same in the US as they are in the UK?

The traditional arrangements for making a will in the US are not unlike those of the UK; an individual would prepare a will, on paper, which they would then sign in the presence of witnesses.

The E-Wills Act allows for arrangements to be changed so that an individual can make a will, sign it and have that signature witnessed, electronically. In practical terms this means that an individual will not have to be in the physical presence of those witnessing their signature of their will.

Back here in the UK, the use of electronic signatures in the context of legal transactions is not uncommon. It is part of everyday practice in many respects and there is legislation in both Scotland and England & Wales that allows for the use of electronic signatures on legal documentation. However, that legislation does not apply to the making of a will.

Why can't wills be electronically signed in the UK?

The UK has struggled with the notion of electronic signatures in the context of estate planning, specifically with regard to wills. This stems from two factors:

The current rules require the testator (the person who has made the will) to physically sign in the presence of a witness. The particulars differ in Scotland, and England and Wales:

• in Scotland, the testator must sign every page of their will in the physical presence of a witness
• in England & Wales, the signature must be witnessed by two people

While there has been discussion on whether the existing rules could accommodate 'e-signatures', it is likely that new legislation would be needed to enable this.

Notwithstanding the constraints of current legislation, there is a long-standing concern that the introduction of e-signatures for wills increases the scope for abuse. A physical signature clearly identifies an individual, and the presence of witnesses supports this. Ensuring that wills are prepared free from any influencing factors, and that the system is robust enough to deal with those concerns, will need to be addressed before this can be adopted.

Could the UK see e-wills in the future?

The time needed to develop legislation to allow for the electronic signature of wills will always be subject to the parliamentary diary. Other issues, such as being able to identify the testator, and being comfortable that the testator understands the implications of signing the will (free from any influencing factors) are not insurmountable.

Technology does have a role to play and there are steps being taken to embrace this. For example, meetings to discuss documentation often take place via Skype etc and signature on other kinds of legal documents can already be taken electronically. The main constraint is one of trust; being comfortable that fully embracing technology will not dilute the competence of an individual to sign a will, or their witnesses' competence to attest to that.

The passing of the E-Wills Act is a clear sign of the direction of travel in the ongoing attempt to make succession planning as efficient as possible. However, it is unlikely that there will be a similar move in the UK in the near future, not until the concerns mentioned above can be addressed in the necessary legislation. 

About the author

Angela McCulloch is a Partner in Wills Executry at Brodies LLP.

See also

Everything you can do to stop blocks in the probate service

Government scraps planned probate fee increases

What to do after someone dies: a checklist

Find out more

HM Courts & Tribunals Service (Gov)

Applying for probate (Gov)

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