As of December 1, 2021, British Columbia will be the first Canadian jurisdiction to recognize electronic wills.
The creation of a valid will is governed by the Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”). Section 37(1) (b) and (c) of WESA state that the will must be “signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time and signed by 2 or more of the witnesses in the presence of the will-maker”.
The new WESA amendments accept electronic wills as valid and permits the electronic signing of remotely witnessed wills. Section 37(1)(a) of WESA requires that a will be in writing. The amendments permit the writing requirement to be satisfied if the will is in electronic form and meets the following conditions:
A. Is recorded or stored electronically.
B. Can be read by a person; and
C. Is capable of being reproduced in a visible form.
Under the new amendments, a will can be signed by the will-maker and all witnesses through various means of audiovisual communication technology that enables persons to communicate with each other by hearing and seeing each other. This includes will signings over Zoom, FaceTime, Skype etc. The rules still require the will signing occur in real time, so viewing a recording would be insufficient for valid attestation
Unlike a written will, electronic wills cannot be altered. To make alternations, the will-maker needs to make an entirely new electronic will. An electronic will can be revoked by deleting an electronic version of the will, or by burning, tearing, or destroying a paper copy of the will. The amendments specify that inadvertent deletion of one or more copies of an electronic will, or portions of one, is not evidence of an intention to revoke.
While these new amendments will provide greater flexibility and access to legal services for British Columbians, they also open the door to potential new risks and legal concerns. The formal requirements for attestation of a will under WESA ensure that a will-maker has the requisite mental capacity and that the will is not made under undue influence, duress, coercion or fraudulently. Virtual attestation could compromise the validity of a will if there is concern that the witnesses or lawyer could not fully evaluate and ensure the will-maker’s mental capacity and freewill.
As the amendments have just come into force, the risks associated with electronic wills is still unknown, but future court challenges could arise regarding the validity of electronic wills.