Estate administration is gradually adapting to our digitized world. Varying between jurisdictions, developments include online, electronic, and digital wills. Online wills are now ubiquitous to estate planning: these are typed and printed, as opposed to being holographic, then signed manually by a testator in the presence of witnesses. Electronic wills are those that are signed electronically by the testator and witnesses, often completed remotely via audio-visual technology and stored in the cloud. Updated will execution processes can also include remote virtual witnessing and notarization. New technology-facilitated options make a necessary but confusing and often ossified process more accessible. However, as with all areas of digitization, estate attorneys must be aware of potential risks to executors and growing pains for probate courts.
The COVID-19 pandemic brought many growing concerns over accessibility and modernization within the wills process to the forefront. With millions of cases and thousands of COVID-related deaths, the necessity of a valid will became manifestly clear. However, despite the effects of the pandemic, the amount of Canadians with valid and up-to-date wills has not risen in proportion. A 2016 survey suggested that approximately two thirds of Canadians did not have a will, with almost two thirds of those with a will stating that theirs was not up-to-date. In 2022, approximately 52% of Canadians do not have a will. This number is considerably higher amongst individuals aged 18-54, for whom there may be a number of barriers.
A quarter of Canadians without a will explain their reasoning as being financially motivated, with the process of executing a will appearing to be too costly. However, the introduction of new digital will preparation tools and remote execution options will hopefully encourage more young and middle-aged people to ensure an adequate level of estate planning fundamentals. During the height of the pandemic, provinces issued emergency orders allowing for remote online notarization and virtual witnessing due to social distancing protocols, though many of these ordinances have not translated to permanent legislative action.
In Canada, British Columbia is the first, and so far only, province to have enacted legislation recognizing electronic wills as valid forms of testamentary instruments, having done so December 1, 2021. Bill 21 updated the existing Wills, Estates and Succession Act passed in 2009 with several technological advancements: digital wills, remote virtual witnessing, digital storage of wills, and the ability to digitally revoke or update a will.
The requirements for electronic witnessing, in comparison with some other US jurisdictions, are relatively relaxed. Witnesses can use any online audiovisual platform, such as Zoom, and be physically located anywhere so long as they can “communicate simultaneously to an extent that is similar to communication that would occur if all the individuals were physically present in the same location.” The new standard for safe, secure, and effective audio-visual technology-facilitated witnessing is experimental and untested. As a consequence of the legislature’s more conceptual approach to this requirement, future jurisprudence may raise interpretive questions about the adequate level of communication. Courts may be faced with new sets of facts like the potential instance of a break or lag in one’s internet connection when executing or witnessing a will.
Despite some hesitancy from estate lawyers in the province, electronic wills and signatures may encourage an increased level of security and fraud prevention. Unlike wet signatures, electronic signatures contain electronic records that can function as proof of the will’s execution. Electronic signatures also contain revealing information about a testator’s will execution through metadata about the signature not found in manually-signed documents. Data about an electronic signature’s IP address, timestamp, and related authenticating information (such as PINs and passwords) may have the future effect of minimizing the amount of wills that fail probate over questions of fraud. They may also serve as extrinsic evidence to support a will’s authenticity in conjunction with attesting witnesses. Many estates have been litigated over the question of a will’s true author; digital signatures may solve these issues.
There are risks associated with digital signatures and wills as well. Because the current legislation is not prescriptive on the format of digital wills, courts may struggle in the future to ensure they probate wills at a consistent standard of statutory compliance with execution requirements. The updated legislation of the BC Act also provides potentially conflicting guidance on the procedure for revoking digital wills. Testators can either delete versions of their will “with the intention of revoking it,” print out and destroy a physical copy of their will with this intention, make a written declaration of their intent to revoke their will, or any other act deemed by the court to constitute their intention to revoke their will. However, what if personal representatives present conflicting digital and physical documents to the court—which one is moot?
For certainty, the British Columbia legislature included a provision in the legislation stating that “an inadvertent deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.” However, the tension between the options enumerated in these subsections may give rise to future litigation over the legal validity of a testator’s deleted or destroyed digital will. Courts may struggle to determine a testator’s true intentions beyond the mistakes of technologically unsavvy decedents and witnesses. Many technologically literate Canadians may appreciate new options for wills, but many may be equally daunted by a more sophisticated process.
Other provinces have employed varying piecemeal approaches to digitization of the wills process since the beginning of COVID-19. Many provincial governments responded quickly to new social distancing requirements of the pandemic through Orders-in-Council. Several of these have continually extended ad hoc temporary orders concerning digital options for testators. Effective August 1, 2020, Ontario enacted the emergency regulation Administering Oath or Declaration Remotely, amending the physical presence requirements for witnessing in the Succession Law Reform Act. On August 19, 2021, Bill 245, Accelerating Access to Justice Act, 2021 received Royal Assent and came into force, permanently allowing for remote virtual witnessing through the use of audio-visual technology under the SLRA.
The Government of Alberta first released a ministerial order allowing for remote signing and witnessing under the Wills and Succession Act on August 15, 2020. The regulation was initially somewhat cumbersome, as it did not allow for counterpart signing and witnessing of wills. Instead, estate lawyers had to physically send copies of the manually signed will to each witnessing party separately. Many estate attorneys criticized this approach for its time consuming nature; while the new changes allowed for remote witnessing during the pandemic, they severely slowed down and beleaguered the overall will execution process.
In response, Alberta made further changes on May 15, 2020 through the COVID-19 Pandemic Response Statutes Amendment Act, allowing for contemporaneous counterpart remote will witnessing and execution. Like in the updated British Columbia WESA section 37 requirements for making a valid will, Alberta testators and witnesses can now sign identical copies of the same document, with both signed documents constituting a single will. On June 16, 2022, Alberta extended that regulation’s effectiveness pursuant to the Act until August 15, 2024. However, these new options are not written in stone. The Alberta Law Reform Institute is currently determining whether to recommend permanent changes to the WSA allowing for remote virtual witnessing in any circumstance.
Provincial legislatures seem much keener to move forward with remote virtual witnessing laws than to open the door to digital wills. Even before legislative enactment of digital wills in the WESA, British Columbia probate courts showed they were willing to probate purely electronic documents through the WESA’s section 58 curative provision, allowing judges to cure “deficiencies” in testamentary documents. In the 2019 decision Hubschi Estate (Re), 2019 BCSC 2040, the court admitted a document found on the decedent’s home computer after his death that said “Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.” Now that digital wills are officially permitted, estate administrators and executors will have a much more explicit responsibility to conduct thorough searches of a testator’s digital belongings and electronic records to determine whether they have left virtual testamentary instruments on their devices.
For other provinces, remote witnessing options, digital wills, and other technology-facilitated options may be on the horizon. As probate courts deal increasingly with COVID-19’s effects on will execution and estate administration, individual courts’ decisions are surely to be coloured by their respective legislative and judicial approaches to strict and substantial compliance, and the harmless error rule. As we see more options for how a will is supposed to be completed, there will be more room for variations—and mistakes—in the process. Moreover, the more digitized and divorced from personal interactions the process becomes, the more estate lawyers must be vigilant for the potential of undue influence and testamentary incapacity. While the benefits surely outweigh the risks, prudent estate lawyers, administrators, and testators must manage them carefully in order to ensure that digitization truly lives up to its potential to increase access to justice for all.
Estateably Inc. © 2024
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