The Imperative of Amending Section 1 of Act 360

In an era where digital innovation is rapidly transforming every facet of our lives, it is crucial that our legal frameworks evolve in tandem to reflect these changes. The Wills Act of 1971 (Act 360) of Ghana, particularly Section 1, stands at the forefront of this needed evolution. Currently, this section mandates that a will must be made in writing, a requirement that, while practical in the past, now calls for modernization to encompass the dynamic ways we communicate and document our lives in the digital age.

The Digital Age and Legal Documentation

Today, we live in a world where digital communication is not just prevalent but often preferred. Emails, digital documents, and even video messages have become standard media for conveying important information. The legal recognition of these digital formats in other areas of law signifies a paradigm shift in how we validate and authenticate crucial documents. Therefore, it is worth exploring how these media can be legally acknowledged in the context of drafting a will.

Advantages of Modernising Wills to Include Digital Formats

  1. Enhanced Accessibility: Digital wills can be created and stored with ease, offering greater accessibility to individuals regardless of their location. This is particularly beneficial for those who may be physically unable to attend a lawyer’s office or find traditional paper-based processes challenging.

  2. Inclusivity: The adoption of digital formats allows for different modes of expression, catering to individuals with varying abilities. For instance, video wills can provide a means for those who are unable to write to convey their last wishes clearly and authentically.

  3. Efficiency and Convenience: Digital wills can be updated and maintained more efficiently than paper-based ones. This convenience encourages individuals to regularly review and amend their wills as circumstances change, ensuring their last wishes are always up to date.

  4. Security and Durability: Digital documents can be securely stored in encrypted formats and backed up in multiple locations, protecting against loss, damage, or tampering.

Disadvantages of Modernising Wills to Include Digital Formats

  1. Legal and Authenticity Concerns: Ensuring the legal validity and authenticity of digital wills poses significant challenges especially with the advancements in AI that can clone and mimic with indistinguishable features. This poses a risk of increased disputes over the decedent’s true intentions, particularly with the potential for digital alteration by AI or other technological advancements.

  2. Digital Divide: The shift towards digital wills may exacerbate the digital divide, disadvantaging those without access to or familiarity with technology. This can lead to inequalities in the ability to draft and maintain a will.

  3. Preservation and Compatibility Issues: The rapid evolution of technology raises concerns about the long-term accessibility and readability of digital documents. Future changes in software and hardware may render current digital wills inaccessible.

  4. Privacy Risks: Storing sensitive information in digital formats increases the risk of privacy breaches. Without adequate cybersecurity measures, personal details and final wishes could be hacked and exposed to unauthorised parties.

The Case for Inclusivity and Accessibility

One of the core arguments for amending Section 1 of Act 360 is the increased accessibility that digital formats offer. Written wills require a level of literacy and access to physical writing materials, which may not be readily available to everyone. By contrast, digital formats like video messages can be more inclusive, providing a means for individuals who might struggle with traditional writing to express their last wishes clearly and authentically.

International Precedents and Progressive Steps

Globally, several jurisdictions have begun recognizing digital wills. These include:

  • Estonia: Pioneered recognizing electronic signatures on wills in 2000, including those embedded in video recordings.

  • United States: Several states have adopted the Uniform Law on Electronic Signatures in Global and National Commerce (UESGNC), allowing electronic wills under specific conditions. Precedents like the 2020 Florida case “Estate of Nissen ” upheld an electronically signed will recorded on a smartphone.

  • Australia: The Electronic Transactions Act 1999 recognizes electronic signatures, potentially paving the way for video wills. However, specific legal requirements and court interpretations are still evolving.

  • England and Wales: The Wills Act 1837 requires wills to be in writing and signed, leaving the validity of video wills unclear. However, the Law Commission is currently reviewing the act, considering the inclusion of electronic wills.

Balancing Tradition with Innovation

The proposition to include digital formats in will-making does not negate the importance of traditional written wills. Instead, it offers an alternative that respects the evolving nature of communication and documentation in our society. It is about providing options that cater to the diverse needs of the populace while maintaining the legal sanctity and seriousness of the will-making process.

Conclusion: A Step Towards a Progressive Legal Framework

As we move further into the 21st century, the legal systems worldwide must adapt to keep pace with technological advancements. Amending Section 1 of the Wills Act – 1971 (Act 360) of Ghana to acknowledge digital media for making a will is not just a nod to modernity; it is a necessary step towards a more inclusive, accessible, and forward-thinking legal system. It is a move that respects the past while embracing the future, ensuring that the law remains a living, breathing entity that evolves with its people.

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