B.C. is taking a step into the unknown with new legislation that allows testators to draft and execute fully electronic wills.
Bill 21, which took effect in December, makes the province the first Canadian jurisdiction to take the process fully digital, by allowing testators to sign and then store their wills electronically, as long as they can be read by a person and “are capable of being reproduced in a visible form.”
Although the Covid-19 pandemic forced Ontario to embrace virtual witnessing, the province has not been much of a trailblazer on this front, maintaining its ban on electronic signatures for the purpose of wills, testamentary trusts and powers of attorney.
Still, a little caution could be good thing, since fully electronic wills are not all upside, and there may be some valuable lessons we can learn from B.C.’s experience in the coming months and years.
There is no doubt virtual witnessing has been one of the better side effects of the pandemic era in Ontario. Initially introduced on an emergency basis, the rules allowing testators to have their wills witnessed remotely, without the need to meet in person with their lawyer, were made permanent with the passage at Queen’s Park of Bill 245, the Accelerating Access to Justice Act.
To be valid, at least one of the witnesses to a will witnessed via audio-visual communication technology must be a licensee of the Law Society of Ontario, while the app used must allow participants to see, hear and speak with each other in real time.
We’ve enthusiastically embraced the possibilities presented by the new rules in our office, just as we do for any technological advance that makes legal assistance more accessible and affordable for all.
However, in practice, remote witnessing can be a little cumbersome and actually uses even more paper than a conventional signing, because you’ve usually got three people on a call, often in different locations. Each person involved initials and signs their own counterpart documents, which must then be brought together for filing, tripling the size of even the most straightforward will.
Fully electronic execution would eliminate that concern, but on the flipside, any measure that loosens the strict requirements for a will’s validity opens up possibilities for disputes or abuse.
Without proper safeguards, digital wills may create uncertainty over which version is the most up-to-date and put vulnerable testators at greater risk of undue influence or fraud.
One thing is certain – the easier it is to make a will, the more important it is to get sound legal advice. Testators can do their bit to avoid the expense and delay of future estate litigation by hiring an experienced lawyer who can ensure their will is not only properly executed, but also accurately reflects their wishes.
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