With Justice Lydiah Achode proposing to have changes in the law to accommodate electronic Wills, the big hurdle is how men and women will write, witness, sign and secure the crucial succession document.
The judge noted that countries like Australia, USA and UK have gone ahead to change their laws to accommodate electronic Wills due to the rise of technology and Covid-19 pandemic.
“Although not formally recognised in many jurisdictions including Kenya, electronic Wills and the use of technology as a medium of documenting evidence is on the rise. As a result of the Covid-19 pandemic, they are more relevant than ever,” the judge said.
The Society of Will Writers, based in the UK, says first, the law should recognise electronic signatures and set which mode will be the most secure for signing the e-will.
“In terms of security, the e-signature must be more than the testator’s name simply typed. This is too susceptible to fraud as any electronically typed name looks the same no matter who types it. Similar problems apply to digital images of written signatures,” it argues.
Cyber security
Justice Achode was of the view that the issues to be addressed include cyber security, obligations to assess capacity, understanding, undue influence and duress.
Big Kev’s video Will was recorded on a mobile phone while another was on an iPad.
The American Bar Association (ABA) argues that the concept of signing and witnessing estate-planning documents electronically, for many, remains absurd.
It argues that technology providers should have a software for e-signatures. According to the lobby, for persons to witness the e-wills, there should also be a video conferencing software, which is secure.
The other issue is confidentiality. According to ABA, if lawyers are using a shared computer, he or she should clear his browser history after the interview.
The association also says a practitioner should not show confidential information through a computer or electronic device sued to store a Will.
It adds that there should be a policy about who can be designated as a qualified custodian of the electronic Will.
