Are You Willing to Risk It?
In today’s digital world, lawyers and clients are more reliant on technology. However, despite the efficiencies and convenience technology has to offer, some formalities should not be replaced. Following the COVID-19 global pandemic, the provincial government implemented measures to ensure the safety of the public. For example, in order to practice social distancing, the provincial government allowed lawyers to use videoconferencing technology to execute documents remotely.
On August 14, 2020, Bill 21: Wills, Estates and Succession Amendment Act, 2020 (“Bill 21”) received Royal Assent and set to be in force on December 1, 2021.
Bill 21 adds the following definitions:
“electronic form”, in relation to an electronic will,
means a form that
- is recorded or stored electronically,
- can be read by a person, and
- is capable of being reproduced in a visible form;
means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record;
means a will that is in electronic form
Bill 21 also adds the following sections:
- In this Part, except in section 38, a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other’s electronic presence.
- For certainty, nothing in this section prevents some of the persons described in subsection (1) from being physically present and others from being electronically present when the action is taken.
- If a will-maker and witnesses are in each other’s electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.
- Copies of a will in counterpart are deemed to be identical even if there are non-substantive differences in the format of the copies.
- For the purposes of sections 37, 40, 43, 62 and 77,
- (a) a reference to a signature includes an electronic signature and a reference to a statement being signed includes the statement being signed electronically, and
- (b) a requirement for the signature of a person is satisfied by an electronic signature.
- Section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.
- An electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.
The creation of a valid will is governed by the Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”). Section 37(1) (b) and (c) of WESA state that the will must be “signed at its 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 2 or more witnesses present at the same time, and signed by 2 or more of the witnesses in the presence of the will-maker”.
WESA’s formal requirements are tools to ensure that a will is not made under undue influence, fraudulently or by an individual with a lack of the required mental capacity.
Essentially, Bill 21 now allows for a will to be in electronic form, signed with an electronic signature and witnessed by someone in a different physical location as long as they are communicating simultaneously with the will-maker. These new electronic means may be a concern when assessing the validity of the will since meeting in-person better allows a witness or lawyer to fully evaluate and appreciate the will-maker’s circumstances. They are in a better position to determine whether the will-maker understands the contents of their will and the consequences of their desired estate plan.
Although the legislation is not yet in force, there may be cases in the future which challenge the validity of electronic wills.
If you or someone you know is seeking advice on their will please contact one of our Estate lawyers for assistance.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.