Electronic wills are coming

The sad reality is that only about 50% of Canadians have a will or have done any Advanced Care Planning. A will is an important first step. Many of us understand that a will, in my jurisdiction, must be written. There is an interesting development that many of us should be aware of in Canada. This is a trend that is already happening in the U.S. Electronic wills are coming. An electronic will, or e-will, is one that recognizes the traditional formalities of a will when they’re in an electronic format.

An e-will can be written in an electronic medium, electronically signed, and electronically validated.

We all think that we know what a will is, but here is a short review. A will is a legal document in which a person, known as the testator, sets forth his or her wishes about how to distribute an estate’s assets, pay debts, care for any minor children, and handle other issues after the individual dies.

Most often, the testator also appoints one or more executors to administer the estate and names guardians for minor children in a will.

A will also might create one or more trusts and name the trustees.

E-wills won’t do away with the need for a formal writing, signature, and attestation by witnesses.

An e-will has those features in an electronic format instead of on paper. An advantage to many people, especially during the Covid-19 pandemic, is that a valid will can be created without the testator having to leave home.

The testator creates the will electronically, or reviews an electronic version created by an attorney, and then forwards the will electronically to a notary who will work electronically.

Then, the testator and the notary have a video chat in which the notary verifies the testator’s identity and intentions.

So, if you are in the United States or in British Columbia you could create an e-will.

 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's 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 require 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.

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 the 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, there are a few more methods that should be discussed with your lawyer.

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.

In the US the Florida legislature passed an e-wills law in 2017, but the governor vetoed it for not having enough safeguards against fraud.  A new version was enacted in September 2019 and went into effect in Florida in 2020. 

An e-will must still be in text. Audio and video recordings won’t suffice. In addition, witnesses still are required. 

Should you prepare your will the old-fashioned way, or use an electronic will? A good general rule is that electronic wills are appropriate for younger people who are used to doing everything online and don’t have a lot of assets or complicated estates. Don’t delay if you have not made your will do so today.

There’s not a lot of room to claim that most people in their 30s or 40s didn’t have the mental capacity or were subject to undue duress in preparing their wills. 

But someone who is older and has a meaningful estate should consider preparing and executing a will the old-fashioned way unless it isn’t possible.

An electronic will also isn’t a good idea when there is a blended family in which at least one spouse has at least one prior marriage that produced children.

Also, don’t use an electronic will if you plan to disinherit someone who would naturally expect to inherit part of your estate and isn’t prepared to be disinherited.