Digital Will Execution: The s.9 Checklist

A will is one of the few instruments in English private law whose validity still turns on a formality framed in 1837 and executed correctly in a ceremony that death makes unrepeatable. Section 9 of the Wills Act 1837, in the form substituted by the Administration of Justice Act 1982, requires that the will be in writing, signed by the testator (or by some other person in their presence and at their direction), that the signature be made or acknowledged in the simultaneous presence of two or more witnesses, and that each witness then attest and sign the will, or acknowledge their signature, in the presence of the testator. These requirements are few in number, but non-compliance is severe in consequence: because the defect comes to light only after death, it is generally irreversible. One misconception needs correcting at the outset, and one legal position stating exactly. The temporary concession permitting witnessing by video link — introduced by SI 2020/952 and extended by SI 2022/18 — applied only to wills made on or after 31 January 2020 and on or before 31 January 2024. It has expired: physical presence of the witnesses is again required for every will executed under the current law. As for a wholly electronic will, England and Wales has no express statutory framework. An electronic document may satisfy the requirement that a will be 'in writing', but whether electronic signatures and attestation can satisfy the existing s.9 formalities is uncertain and untested, and the law provides no dedicated rules for an electronic original's integrity, alteration, or proof. A household should therefore not attempt a wholly electronic will under the present law: 'digital' in the title of this note is a caution, not a category. A substantial share of the execution failures that reach the law reports traces back to a small set of recurring traps, and the most dangerous of them is also the quietest. A beneficiary, or that beneficiary's spouse or civil partner, who acts as a witness voids the gift under s.15 while leaving the will itself standing, so the loss surfaces only at distribution. Alongside it sit witnesses who were not simultaneously present, problems with the signature and its placement, the special position of the blind, illiterate, or physically incapacitated testator, and alterations caught by s.21. The note sets the s.9 requirements out as an execution checklist and takes the failure points one at a time. A closing section summarises the Law Commission's Modernising Wills Law report (Law Com No 419, 2025) — a dispensing power, a scheme for electronic wills, abolition of revocation by marriage — none of which is yet law. The household most likely to treat a video call or an electronically-signed PDF as close enough is usually the household signing without anyone in the room whose job is to stop them, and the defect will be found only after death, when nothing can be re-signed.