Ontario is one step closer to recognizing electronic wills after a judge cast doubt on the province’s apparent ban.
In a recent Ontario Superior Court case, the judge was asked to consider an emailed file that an Ottawa man sent to his sister a couple of years before his 2022 death.
The attached file was labeled as his will and was entirely computer generated, complete with a typed signature line including the testator’s name.
The deceased’s mother objected to the document’s validation as a will, pointing to a subheading in the Succession Law Reform Act that reads “No electronic wills,” referring to a provision in another provincial law – the Electronic Commerce Act – which states that wills and codicils cannot be created or executed electronically.
However, both of these passages predate Ontario’s landmark 2021 Bill 245, which moved the province from a “strict compliance” regime to one of “substantial compliance.” That change essentially allows Superior Court judges to validate wills that would otherwise have been declared void due to technical errors.
The deceased’s sister argued that the prohibition mentioned in the ECA referred only to the “creation” of an electronic will – not to the “validation” of an electronic document in substantial compliance with the SLRA. And the judge agreed:
“The SLRA and the ECA, when read together, do not create a prohibition, express or implied, against…the validation of an electronic document as fully effective testamentary document, if the requirements of s. 21.1 are met,” he wrote.
It’s important to stress that the judge did not actually validate the will in front of him. Instead, his decision means that it can move forward for a full hearing on whether it should be validated.
The state of the law will become much clearer once this case and others like it have been heard in full, possibly after an appeal to the province’s top court.
However, it may be more efficient for the provincial government to take action itself – either to close the legislative gap that the Ottawa case exposed, or to create its own framework for the creation and validation of electronic wills.
For example, since 2021, B.C. has allowed testators to draft and execute fully electronic wills through legislation that provides for the signature and storage of wills by testators, as long as they can be read by a person and “are capable of being reproduced in a visible form.”
The convenience is of this kind of option is inarguable, 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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