Electronic signatures are officially declared to be legally valid with The Law Commission of England and Wales confirming that electronic signatures are a valid way of executing documents. However, there are proposed exemptions, including Wills, Powers of Attorney, Deeds stating they were signed in the presence of a witness and certain Land Registry documents.
The Commission highlights historic flexibility in recognising differing types of signature, such as signing with a mark (‘X’), initials, a printed name and a description of the signatory such as ‘Your loving son’. Given recent Court approval of electronic signatures on emails, and ‘tick boxes’ the Commission are keen to remain in touch with current trends though concerns remain.
The 1837 Wills Act still governs the requirement for making a Will and the need for two attesting witnesses. The Commission is still considering the place if any, for digital signatures in Wills. For almost two hundred years the general and fundamental principal is that a Will is only valid if two witnesses are present, confirming the validity of the Will. A Will made via email or text message presents obvious concerns over the author, capacity of the individual and potential undue influence. Clearly it is important to recognise society trends and any simplification which results in more people signing Wills and Powers of Attorney is to be encouraged. However, electronic signatures are more susceptible to fraud than handwritten signatures, with concerns not only over the author but also regarding the reliability and security of the technology – digital hacking? The Commission is to continue to consider the issues and possible legislation may be introduced.
Interestingly, the Commission noted that there was a strong objection to electronic signatures on Powers of Attorney because of the risk of harm or fraud to vulnerable and often elderly donors. The logical conclusion is that this must also apply to Wills.