Electronic Wills in BC
Will-making is entering the digital age in BC.
In July 2020, the BC Legislative Assembly passed the Wills, Estates and Succession Amendment Act, 2020 (Bill 21) that will make it possible to have a valid Will that exists entirely in electronic form.
The Bill 21 amendments also authorize witnessing of Will execution by means of video technology that allows the testator and witnesses to be in the “electronic presence” of one another. That will apply to conventional Wills on paper as well as ones that consist only in a computer file. In the case of conventional Wills, the witnesses would need to sign identical counterpart copies of the Will if they observe the testator’s signature remotely by means of audiovisual technology. In the case of an electronic Will, execution and attestation could be accomplished by affixing unique digital signatures to the Will by means of an e-signature program like DocuSign, despite the fact that the testator and witnesses may all be in different locations. It will remain a requirement that the signature and witnessing happen in real time, because the definition of “electronic presence” in the amendments requires that the testator and witnesses be able to communicate simultaneously as if they were physically present in the same location. Viewing a recording of the testator signing would be insufficient for valid attestation.
Remote witnessing of Wills that took place on and after 18 March 2020 is retroactively validated by Bill 21, as long as it would have satisfied the requirements of “electronic presence.” The date of 18 March 2020 coincides with the declaration of a state of emergency in British Columbia; it is also the date on which the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020, retroactively took effect. Ministerial Order 161/2020 was made under the Emergency Program Act to take account of the difficulties that rigorous social distancing placed in the way of Will-signing, and to respond to concerns expressed by lawyers and the public about the situation.
The provincial Ombudsperson later cast doubt on the legality of the emergency order, arguing in a report issued in June 2020 that the order could not override the requirements of WESA for attestation of Wills and went beyond the minister’s authority. Bill 21 will repeal the order, as it will no longer be needed once the amendments to WESA contained in the bill come into force.
While the Coronavirus pandemic was the principal impetus toward relaxing the requirement that the Will-maker and witnesses be physically present in the same place when a Will is signed, it was not the only reason for introducing electronic Wills on a permanent basis. The increasing reliance on digital technology in daily life and work was another. The Hon. David Eby, Attorney General of BC, stated on second reading of the bill that it was not merely a reaction to pandemic conditions, but was based on work on electronic Wills by the Uniform Law Conference of Canada (ULCC) that had been underway for more than a year. He added that he expected other provinces would follow British Columbia’s lead in implementing the electronic Wills provisions.
One of the implications of allowing electronic Wills is that there may be no true “original” like the actual ink original of a conventional Will. Any number of copies of the computer file comprising the signed Will may exist, each of which contains identical text and signature data, and each of which is equally valid. That raises the question of how an electronic Will may be altered or revoked. If there is no single “original,” and a potentially infinite number of duplicates, what will amount to a valid alteration or revocation?
Bill 21 provides answers. It will only be possible to alter an electronic Will by making a new Will. In the case of revocation, more methods will be allowed;
- making a new Will in accordance with WESA, as amended by Bill 21;
- making a written declaration of revocation, electronic or on paper, signed and attested in the presence of two witnesses in accordance with WESA, as amended;
- deleting one or more electronic versions of the Will or the portion in question with the intention of revoking it;
- burning, tearing, or destroying in some manner a paper copy of the Will in the presence of a witness with the intention of revoking all or part of the Will;
- performing another act, if the Court later determines under section 58 of WESA (the curative provision allowing the Court to admit a document to probate despite formal defects) that “the consequence of the act… is apparent,” and that it was done with the intent to revoke the Will in whole or in part.
Bill 21 specifies that inadvertent deletion of one or more copies of an electronic Will, or portions of one, is not evidence of an intention to revoke. The advent of electronic Wills will require changes in probate procedures, and it remains to be seen what shape they will take.
Greg Blue, QC, is Senior Staff Lawyer at the BC Law Institute.