On December 1, 2021, amendments to the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 ("WESA") are slated to come into effect which will permit the making of electronic wills and the use of electronic signatures on testamentary documents. With these amendments, British Columbia will become the first jurisdiction in Canada and, indeed, one of the first jurisdictions anywhere, to recognize wills in electronic form.
In some sense, these changes merely extend developments in the use of digital technology during the COVID-19 pandemic and bring the will-making process in line with other sectors that have embraced the use of electronic records and signatures. However, digitization poses unique challenges when it comes to the creation and validation of testamentary documents that British Columbians, as trailblazers in this area, will have to grapple with.
Traditionally, for a will to be valid in British Columbia, it must meet three formal requirements, which are currently set out in WESA s. 37(1):
- It must be in writing;
- It must be signed at the end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of two or more witnesses present at the same time; and
- it must be signed by two or more of the witnesses in the presence of the will-maker.
Previous amendments to WESA, which came in 2020, expanded the meaning of "presence" in s. 37(1) to include "electronic presence"-thus allowing for the remote execution of wills using video-conferencing technology. The amendments slated to come into effect on December 1, 2021 will introduce even more flexibility in terms of how the formal requirements in WESA s. 37(1) can be met:
- Electronic Wills: The new WESA s. 37(3) will allow the writing requirement to be satisfied if a will is in "electronic form". This means a form that: (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of being reproduced in visible form. In effect, this amendment will enable the courts to accept wills that are created and stored electronically, and for which there is no original physical copy.
- Electronic Signatures: The new WESA s. 35.3 will permit the signature requirement to be satisfied by an "electronic signature". This term is defined broadly to mean "information in electronic form that a person has created or adopted in order to sign a record that is in, attached to or associated with the record." Based on this definition, the signature requirement could be satisfied by a "digital signature", which makes use of cryptography to validate the authenticity of an electronic document, but it could also be satisfied by other, less secure, alternatives, such as typing one's name or initials or copying and pasting a signature image. The key requirement is that the signer must intend the "information" to act as their signature.
- Altering and Revoking Electronic Wills: Amendments to WESA ss. 54 and 55 clarify the requirements to alter and revoke a will in electronic form. The new WESA s. 54.1 provides that an electronic will can only be altered by making a new will in accordance with WESA s. 37. The new WESA s. 55.1 sets out various ways that an electronic will may be revoked in full or in part, including by deleting one or more electronic versions of the will, or a portion of the will, with the intention of revoking it, by burning, tearing, or destroying all or part of a paper copy of the will with the intention of revoking it, or by making a written declaration of revocation, electronic or on paper, signed and attested in the presence of two witnesses. WESA s. 55.1(3) also clarifies that "inadvertent deletion" of one or more versions of an electronic will is not evidence of an intention to revoke.
Readers are also advised to review the amendments to the Supreme Court Civil Rules and the Court Forms to reflect the changes to WESA. Those changes can be found in Order in Council No. 540, and are effective on December 1, 2021.
A new era for will-making in British Columbia?
At first glance, what is interesting about these amendments is how non-revolutionary they are in the context of modern Canadian life. As the Uniform Law Conference of Canada describes in their 2019 Progress Report on electronic wills, "we. now operate in an environment where much of our daily lives and arrangements are performed electronically-most of our banking, all of our healthcare records, most of our insurance and even our professional certifications is all carried out electronically." Both electronic records and electronic signatures are widely used and considered reliable for a variety of important commercial, bureaucratic, and personal purposes. This shift to digital technologies has only accelerated during the COVID-19 pandemic, with many workplaces, schools, and government agencies moving fully online.
From this perspective, WESA's recognition of electronic wills and signatures is not a radical development as much as it is the modernization of an area of law that has been lagging behind technologically. By introducing more flexibility into the formalities around will-making, these amendments stand to improve access to estate planning services and make it easier for British Columbians to validly record their testamentary wishes.
However, there is a reason that the area of will-making has, for so long, resisted the shift to full digitization. Wills are unique in that they are used by an individual to regulate how their property will be dealt with after their death-in other words, when they are no longer around to speak to their testamentary wishes. This is what makes the formalities around will-making so important-they serve as reliable evidence that the document does, in fact, represent the testator's final intentions and help to prevent against fraud.
The new amendments to WESA's formal validity requirements arguably prioritize convenience at the expense of these important evidentiary and security functions. In particular, the recognition of electronic wills and signatures is likely to create new challenges in assessing the authenticity of testamentary documents. If an individual has multiple versions of their will stored on their electronic devices, how does one determine which document represents their final testamentary intentions? If a will is stored on a device or server that people other than the will-maker can access, how can one be certain that the document has not been altered after execution?
These issues are also compounded by the permissive nature of the WESA amendments. Other sectors that rely on electronic documents often have safekeeping requirements to ensure a chain of custody or mandate the use of secure digital signatures. However, under the new WESA provisions, there is no requirement that an electronic will must be locked after execution or lodged with a trusted third party. The definition of "electronic signature" is also extremely broad, and could open up new avenues for fraud as individuals begin to use informal and non-secured means to execute their testamentary documents.
The forthcoming WESA amendments will introduce new options for will-making that are likely to be appealing to many British Columbians. However, individuals who intend to make use of WESA's new electronic will provisions should be aware of the potential evidentiary and security issues around these documents and plan accordingly. While the legislation does not require it, taking precautions such as storing an electronic will with a lawyer or electronic service provider and using an encrypted digital signature will help to avoid future litigation and ensure that one's testamentary wishes are respected. Other conventions around the creation and execution of electronic wills are likely to develop as the legislation is applied by the public and interpreted by the courts.
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