On December 1, 2021, British Columbia became the first province to allow electronic wills - fully digital wills.
This development is welcome news for many Ontarians with assets in BC. These Ontarians can now make BC-specific wills fully electronically.
While Ontario law currently does not permit electronic wills, BC's new rules might also be of interest to many Ontario lawyers and law reform advocates who can now look west of the Rockies for inspiration for their own made-in-Ontario law. Could BC's new electronic wills regime be a glimpse into Ontario's future?
Making an electronic will
Before December 1, 2021, a will-maker could only make a valid will under BC law by signing a physical will with wet ink in the presence of two witnesses (who may be physically or virtually present - i.e. linked to the will-maker by videoconference). The two witnesses then had to sign the same physical will or a counterpart with wet ink in the will-maker's physical or virtual presence.
Since December 1, 2021, will-makers now have another option under BC law: electronic wills. These wills can be signed and stored completely digitally. No printed original, paper copy, or even wet ink signatures are needed. Rather, the will-maker and witnesses can sign the electronic will by "electronic signature". An electronic signature is a signature or identifier, in electronic form, that a person has created or adopted in order to sign a record. It does not have to be an exact facsimile of the person's actual signature. Will-makers can store their electronic wills on their own electronic devices or with a "third-party electronic repository". Examples of third-party electronic repositories could include web- or cloud-based storage platforms.
How might a will-maker sign an electronic will? The electronic wills rules in the BC Wills, Estates and Succession Act ("WESA") and the BC Supreme Court Civil Rules are still relatively new, and many have and will come up with creative ways to comply with them. Here are two possibilities:
- Example 1: The will-maker and the two witnesses are physically in the same room. They share an electronic device that displays a PDF of the will. The will-maker signs the PDF will on the electronic device with their finger or a stylus in the physical presence of the two witnesses. Each of the witnesses then signs the PDF will in the physical presence of the will-maker.
- Example 2: The will-maker and the two witnesses are all in different physical locations but are all in the same video conferencing "room". The will-maker uses the screen sharing function on the video conferencing platform to share a live display of the will on their screen with the two witnesses. The will-maker then signs the will by electronic signature, and the two witnesses observe this in real time. The first witness then shares their screen with everyone and electronically signs the same will (or a counterpart of the will) in everyone's virtual presence. The second witness then shares their screen with everyone and does the same.
After the will-maker and witnesses have all signed the electronic will, it is generally recommended that the will-maker immediately save a complete signed electronic copy of the will as a PDF, lock the PDF from further editing, store it in a secure location, and file a Wills Notice with the BC Vital Statistics Agency indicating that an electronic will was made and/or where the PDF is stored.
The will-maker should then provide ongoing instructions to one or more trusted individuals (e.g. the executor) on how to access the electronic will and all digital places where the will-maker keeps important documents. This is important because the updated BC probate forms now require executors to swear that they have made a diligent search of all places where a testamentary document may be found, including both physical and electronic places.
The promise of electronic wills - and the potential pitfalls
Electronic wills will be an attractive option for many. The snowbird, the BC property owner living abroad, the tech-savvy, or the environmentally-conscious might prefer to go paperless when making, signing, and storing their wills.
For others, electronic wills may be the only practical option. For example, the sick, the self-isolating, the hospitalized, and residents of long-term care homes with visitor restrictions may have no other choice but to make an electronic will.
Electronic wills might be seen as a logical, even inevitable, next step in the modernization and digitization of legal processes, a trend that the COVID-19 pandemic has only accelerated. It is expected that other provinces, like Ontario, may follow BC's lead.
However, as with any promising new development, electronic wills also come with a number of pitfalls and risks. Before making an electronic will, BC will-makers should consider the following:
- How likely is it that the electronic will could get lost, corrupted, deleted, or misplaced, be the target of a data breach, or become irretrievable in the future because current technologies have gone out of date?
- How difficult will it be for an executor or a trusted party to retrieve the electronic will or even a deleted electronic will from the will-maker's electronic devices or from a third-party electronic repository, if it is necessary to do so? If it is relatively easy to gain access to the electronic will, then how likely is it that an uninvited person or third party can view, copy, and/or share the electronic will?
- How likely is it that another person could alter or revoke an existing electronic will or make a new electronic will without the will-maker's knowledge - and remove all "fingerprints" associated with their actions (e.g. by deleting metadata)?
- If a will-maker makes an electronic will but leaves the will in an editable format (e.g. a word processing program file or an unlocked PDF) and if the will was last saved (even inadvertently) on a more recent date than the date on which the will was purportedly made, what assurances must the executor give to the court that the will had not, in fact, been altered (see BC Supreme Court Civil Rule 25-3(3)(a.1)(iii) and Form P45)?
- A will-maker may revoke an electronic will if they delete a version of the will with the intention of revoking the will (WESA, ss. 55.1(1)(a)); however, an inadvertent deletion of an electronic will is not evidence of an intention to revoke a will (WESA, 55.1(3)). How would one know whether the deletion of an electronic will was inadvertent or deliberate? And how would one know who deleted the will?
- A will-maker may also revoke an electronic will if they tear, burn, or destroy a paper copy of the electronic will, in the presence of a witness, with the intention of revoking the will (WESA, ss. 55.1(1)(b)). If the will-maker revokes an electronic will in such a way but leaves no record of such an act or if the sole witness is not available later to testify, how likely is it that an executor, third party, or a court could mistakenly rely on the electronic will if it remains available and intact?
- A will-maker cannot alter an electronic will but must instead make a new will (WESA, s. 54.1(1)). If the will-maker nonetheless attempts to alter their electronic will, to what extent will a court (using its curative powers in s. 58 of WESA) treat the alteration as being effective?
- Electronic wills cannot be revived (WESA, s. 57(1)). If a will-maker first makes an electronic will, but then makes a second will that revokes the first, and if the second will is later found to be invalid, to what extent will a court (using s. 58 of WESA) treat the revoked electronic will as being revived? What if the revoked electronic will had been deleted?
- Few other jurisdictions outside Canada and no other province in Canada currently recognize electronic wills. If a grant of probate is not obtained in BC, to what extent will other jurisdictions-like Ontario-recognize and enforce the electronic will?
This list of questions and potential problems with electronic wills is by no means exhaustive (and several of these issues are not entirely unique to electronic wills, as physical wills face similar problems).
As more British Columbians make electronic wills and as the first electronic wills make their way through the probate process, one expects that more issues with electronic wills will be uncovered. One also expects that other provinces will be watching British Columbia's experience with electronic wills closely.
By being "first in the nation" on electronic wills, British Columbia has showed leadership on an important legal development while also volunteering as Canada's guinea pig. Time will eventually tell how successful BC's experiment is, based on how many British Columbians draw up electronic wills-and how many other provinces draw up similar electronic wills legislation as BC's as well.
Previously published in Ontario Bar Association Estates and Trusts Law Newsletter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.