The key element in converting a document expressing your wishes, into a legal Last Will and Testament, is the signature in the presence of two witnesses. The requirement to have the document signed is written into the law of every jurisdiction which is why, today, audio and video Wills are generally not legally valid.
In a World that sees technological advances happen on an almost daily basis, it is quite surprising that so much weight is placed on the scratch that is a person’s signature. In fact, when we started LegalWills ten years ago, we planned for something that just hasn’t materialized; the evolution of digital signatures.
Here’s a couple of signatures; one of these belongs to the new mayor of Toronto:
Unfortunately, in the legal world of Last Will and Testaments, a signature like this is regarded as more authentic than a video Will, audio Will or digital Will signed with a digital signature.
To make your Last Will and Testament legal, it must be signed in the presence of two witnesses, and that signature is critical element of the Will that identifies it as yours, and not a fraudulent document. The Will is usually typed, but by signing at the end, in ink, it allows the law to recognize that document as authentic. Of course, there are other variants on the signature; one is allowed to mark the document with an “X” if illiterate, and some cultures are more likely to go with a thumbprint as described in the recent fight over an Ojibwe Will.
But the weight attached to a signature seems preposterous to us. How many times have you needed to have a person sign a document, only to witness their signature as a nondescript doodle? Yet, the various statutes describing Wills has not kept pace with technology. In the US, the law is captured under the Uniform Electronic Transactions Act which states within it “This Act does not apply to a transaction to the extent it is governed by: the law governing the creation and execution of wills, codicils, or testamentary trusts”. In Canada and the UK there are no explicitly exceptions in the digital signatures acts (the Personal Information Protection and Electronic Documents Act in Canada and The Electronic Signatures Regulations in the UK). But the law describing the creation of Wills does include a provision for requiring a written signature.
Although it makes more sense to allow people to store a Will online, encrypted, and digitally signed, so that it can be accessed by one’s family at the appropriate time. It is currently not legal. Today, in 2010, it must have that doodle at the end of the document, that we call your signature.
At LegalWills we’re hoping that one day, the law will catch up.