Since 2020, the COVID-19 pandemic has brought death closer to home and will is no longer an option. Many people are now concerned about the potential seriousness of COVID-19 and have the realization to create or revise their wills. Undoubtedly, COVID-19 has resulted in a societal change where people are growing more reliant on technology and expect to be able to manage every aspect of their affairs online. These include online shopping, online food delivery services, mobile banking, and even conducting classes or meetings virtually. Since everything else can be done digitally, why not wills? Especially since we are on the verge of digital transformation. When talking about digital will writing, a common question people ask is ‘whether it is valid and allowed under the law?’
To ensure its validity, the will is governed under the Wills Act 1959 (Act 346) (“The Wills Act“). Section 5 of the Act lays down a number of requirements that need to be fulfilled before a will can be considered valid in Malaysia. Section 5(1) of the Act provides that:
“No will shall be valid unless it is in writing and executed in the matter hereinafter”
Based on the above provision, a will must be in writing. The question is whether “in writing” must be handwritten or can also be typewritten? This requirement has no issue with the creation of a digital will. This is because digital writing is capable of fulfilling the ‘writing’ requirement, as Section 3 of the Interpretation Act 1948 and 1967 (“the Interpretation Act“) has defined ‘writing’ to include a digital form:
“Writing or written includes typewriting, printing, lithography photography, electronic storage or transmission or any other method of recording information or fixing information in a form capable of being preserved”.
According to the said provision, any modes of writing, as long as it is visible, it would satisfy the writing requirement as it falls under the definition of writing in both the Wills Act and the Interpretation Act. Section 8 of the Electronic Commerce Act 2006 further confirms that:
“Where any law requires information to be in writing, the requirement of the law is fulfilled if the information is contained in an electronic message that is accesible and intelligible so as to be usable for subsequent reference.”
This shows that any documents created digitally by using will writing software are considered “in writing” since they are visible and accessible to everyone. Although the digital will is kept electronically without the need to print out the hardcopy, it will still fulfill the said requirement as the wills can still be viewed. Hence, there is no issue with writing and storing a will digitally. However, video wills are not included under this group of “written” documents as they fail to satisfy the criteria for wills under the Wills Act as a video is not in a written form, and it cannot be signed by the testator and the two witnesses. Thus, any will made via video by a testator is deemed to be invalid under the law of Malaysia and can be contested in court.
Since we are now living in a world where technology is at our fingertips, and most of us spend our time and days on our smartphones, laptops, and computers, digital will writing can also be part of the digital transformation. Further, COVID-19 makes it more relevant to have a digitalized will where people can easily create and update their wills online anywhere and anytime.