Davina Haydon, a partner in our specialist Inheritance and Trust Disputes team, addresses this question.
In this digital age, is the testator’s fingerprint on their will acceptable, or does such a fingerprint signature invalidate the will?
The answer is a testator’s fingerprint is still an acceptable signature, provided it meets the requirements of the Wills Act 1837.
The High Court (His Honour Judge Paul Matthews) decided this question as recently as October 2023 in Otitoju v Onwordi.
Ever since the Wills Act 1837, a variety of non-traditional wet ink signatures have been permitted by the courts such as thumb prints (in ink); initials; rubber stamps; seals; and the words where the testatrix just signed “Your loving mother”.
It may seem remarkable that a Victorian statute dictating a paper and ink signature process, can still apply in the 21st century, an age of increasing digitalisation with ever-increasing use of electronic signatures.
It may seem even more remarkable that despite the use of electronic signatures in many personal and business transactions, an electronic signature is not yet an acceptable signature on a will or codicil. This is because it does not meet the strict criteria in the Wills Act 1837.
Although the Law Commission has been consulting on the topic of electronic wills since 2017, the Wills Act 1837 is still in force. This is because concerns remain that wills are not typical business or personal transactions. Wills (and codicils) are unique personal documents – written statements of a testator’s wishes most often in relation to property – which cannot be proved as valid until after the testator dies, when the testator is no longer around to provide evidence about how the will was made.
The concern remains that if the current law is relaxed, including permitting electronic signatures, testators and their wills (and codicils) will become more susceptible to undue influence and fraud.
The law
It is section 9 Wills Act 1837 (as amended by section 17 of the Administration of Justice Act 1982), which states that:
“No will shall be valid unless:
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness)
but no form of attestation shall be necessary.”
These longstanding protections evidence the testator’s intention to make a will and set a sequence in which that will (or codicil) must be signed and witnessed. If this process is followed, there is a presumption of “due execution” and a challenge to the validity of the will on this ground should fall away.
The Wills Act 1837 does not dictate the type of signature although case law (such as Barrett v Bem in 2012) noted that “… the testator must, of course, intend to have the document executed as his will. But the signing…need not be a written signature; a mark with the necessary intent will suffice…”
The recent case
Onwordi was a will validity and burial dispute case. The deceased’s will was challenged on various grounds including that the fingerprint was not the deceased’s and so he did not “sign” the will; that he did not have sufficient capacity to make the will; and he did not have sufficient knowledge and approval of the will.
Judge Matthews referred specifically to the section 9 requirements, including the need for the testator to sign and how prior case law had established that a testator could comply with the signing of a will by affixing a fingerprint “by which he was authenticating the will.”
The judge was also reassured that the will had been prepared professionally by a firm of solicitors, that a representative of the firm visited the deceased in hospital and would have assessed capacity and explained the terms of the will to the deceased before execution.
The judge concluded, “The will is regular on the face of it, appearing to have been properly executed in accordance with section 9 of the Wills Act 1837. Accordingly, the presumption of formal validity applies.”
The future
Despite the Law Commission’s consultation process and permission being granted during the Covid pandemic for the Wills Act 1837 to be amended to enable the remote witnessing of Wills (this permission lasting until 31 January 2024), the Wills Act 1837 is still the law on due execution.
While the Law Commission’s latest consultation paper (published in October 2023) does not mention fingerprints specifically, electronic signatures including biometric signatures are considered incompatible with the Wills Act 1837.
But the Law Commission concedes something is needed for the modern era.
Rather than allowing electronic signatures by amending the Wills Act 1837 by an enabling power, the Law Commission is now of the view that a new bespoke statute is required which would then be subject to full scrutiny by Parliament. STEP (the Society of Trust and Estate Practitioners) supported this in its December 2023 response.
Conclusion
We cannot predict when an Electronic Wills Act will become law. It seems it will continue to take time to develop.
Until then, testators can continue to sign wills in ink or “affix their mark” so long as the Wills Act 1837 formalities are followed, to the letter.
If you would like to discuss anything raised in this article, please contact our Inheritance and Trust Disputes team