The BC Government has put forward legislation that would allow for remotely-witnessed, electronically-signed, self-proving wills.
Provincial governments are figuring out how to move forward from emergency orders made during COVID-19. As things go back to normal, do we revert back to the old way of executing wills? Or do we move forward with additional changes?
BC's Bill 21, the Wills, Estates and Succession Amendment Act, 2020, would permit the creation of fully electronic wills.
Under the proposed legislation, an electronic will can be:
- Witnessed in the "electronic presence" of others, rather than [s. 35.2]
- Signed with an "electronic signature" instead of a wet signature (s. 35.3) and can exist in a purely electronic form [s. 37(b)(3)]
- Only altered by creating a new will [s. 54.1]
- Revoked by deleting one or more copies of the file with the intention of deleting it. Accidental deletions don't count [s. 55.1(1), (3)]
BC's move to allowing electronic wills follows legislative developments in several US states. The proposed legislation would make it easier to draft a will, especially for those living in remote areas or living with health/mobility issues.
But there are questions about how electronic wills would work in practice.
- What happens if a testator deletes one copy of an electronic will but other copies remain? Is each copy an equally valid will, or is there one master file?
- Where should e-wills be stored? If the accidental deletion of the file doesn't count as a revocation, what happens if the file can't be retrieved? Are we going to have difficulty finding/accessing these documents many years after they're created?
Some Preliminary Thoughts
Electronic wills can be a positive development, but the devil is in the details.
It's easy enough to lose paper records. As computers are replaced, files get corrupted, and hard drives crash, it's very easy to lose track of digital files. In the US, legislation requires that electronic wills are stored with a "Qualified Custodian", i.e. a service provider with proper backups, security, and who can produce documents for court.
Storing the documents with a Qualified Custodian also ensures there is a single master-copy, avoiding complications stemming from managing multiple electronic originals. There should also be safeguards to prevent elder abuse. This could mean involving a notary or a law society licensee in the process or videotaping the digital signing.
Legislation allowing e-wills has the potential to be more than just another way of drafting a document. If done properly, there's an opportunity to substantially improve the process with better records and documentations, more safeguards to prevent abuse, and making wills accessible for more people.