“Is a Will signed digitally using an electronic signature valid?” and “can I have my Will signed with my witnesses watching on Skype?” are questions that have arisen since the Global Pandemic hit.
Wills Act requirements
Section 6 (2) of the Wills Act requires every Will to ‘be signed at the foot or end’ of the Will by the will maker. Also the signature has to be made or acknowledged by the will maker as the signature to his/her Will in the presence of two or more witnesses.
What does ‘‘be signed’ by the will maker mean? Can he or she sign it digitally?
Electronic Transactions Act (Chapter 88) (the ‘ETA’)
The ETA introduced electronic signatures in Singapore. Under Section 8 of the ETA where a rule of law requires a signature that requirement is satisfied if an electronic signature is used.
Nowadays with the ETA you can have a contract signed electronically or digitally and it would be considered legal and valid under Singapore.
Wills & electronic or digital signatures
Does the ETA allow you to sign your Will electronically or digitally then?
So if you sign your Will digitally using an electronic signature the Will is NOT valid.
Section 4 of the ETA expressively excludes the ETA from operating in certain circumstances. The first of these circumstances is “The creation or execution of a will”.
So you cannot use a digital signature to create a Will or to execute (ie sign) a Will. To be valid your Will must be signed by you manually by hand.
Can I sign my Will with a witness seeing me sign it remotely?
If you can’t sign a document digitally can a Will be made with your witnesses watching you on skype, zoom, etc sign your Will?
The Wills Act requires you and your witnesses to sign your will “in the presence” of each other. What does ‘in the presence’ mean?
Does it mean your witnesses must all be physically present when you sign your will?
The Wills Act does not actually define what ‘In the presence’ means.
There are several genuine difficulties that may lead to a court refusing to accept as valid a Will that has been witnessed by remotely via skype etc.
One serious difficulty would be that a witness can never be certain that the document that is later received by a witness is in fact the same one that the witness saw being signed by the will maker.
We plan to look into this issue in greater detail in a later article.
For now, it is best to treat ‘in the presence’ to mean ‘in the physical presence’.
Certainly prior to the internet the commonly understood meaning of ‘in the presence’ would be ‘in the physical presence’. It is best to err on the side of caution and have your Will signed in the physical presence of your witnesses.
Otherwise, you might find your estate being eaten up by legal fees working out if a Will witnessed remotely is valid or not.