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Electronic Wills

In my last blog, I discussed the advantages of a statutory power that allows a court to validate a defective will. In this blog I want to consider the device of the electronic will.

Some 20 years ago the Canadian provinces enacted legislation that authorized electronic documents and transactions and provided for electronic signatures. Ontario’s statute, the Electronic Commerce Act, 2000,[1] is representative. However, these statutes expressly excepted wills and certain other documents from their ambit.[2] There were undoubtedly valid reasons for the exception. For one thing, most Canadian jurisdictions at that time continued to adhere to a strict compliance with statutory formalities for wills. For another, a will is an intensely private document by which a person regulates how her property is to be dealt with after her death and it is in her interest and in the interest of the state that her intentions be readily ascertainable, so that they can be carried out. And third, after the testator’s death, it is no longer possible to inquire about her intentions; one can only rely on her written statement of them. Yet another reason that is often advanced is that the regulation of the making, alteration, and revocation of electronic wills remains difficult, if not impossible.

For these and other reasons, most jurisdictions have avoided enacting legislation authorizing electronic wills. Has the time come to reconsider this approach? Certainly the Covid-19 pandemic has forced us to adjust the application the formal requirements by permitting execution of wills by the use of audio-visual technology and of signing wills in counterpart. Of course, these are emergent measures that are effective only for the duration of the emergency. But perhaps they will motivate us to consider different ways of making wills in the future.

Apparently, the only jurisdiction that has adopted electronic wills is the State of Nevada. It amended its Wills Act in 2001 to permit electronic wills.[3] Its provisions are quite restrictive. For example, the will must include the date, the testator’s electronic signature, and at least one authorization characteristic of the testator. Such a characteristic must be capable of measurement and of recognition in an electronic record and may consist of a fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature, etc. Only one authoritative copy of the will may exist. It must be maintained and controlled by the testator, or by a custodian designated by him. Any copy must be identifiable as a copy of the authoritative copy. And further, any alteration must be readily identifiable.

In my opinion, we certainly ought to explore whether it is possible to authorize electronic wills under strict conditions. But there remain a considerable number of concerns about them. The British Columbia Law Institute outlined them as follows in its Report No. 45, Wills, Estates and Succession Report: A Modern Legal Framework.[4]

Electronic wills still present a number of issues that would have to be resolved, were they to be give full statutory recognition. For example, how is revocation effected where there is no single original? Where several identical, digitally signed copies of an electronic will exist, it becomes difficult to say that an original has been destroyed. In Nevada, the only jurisdiction to have validated electronic wills in a prescribed form, only one authoritative copy may exist, and it must be controlled by a custodian designated by the testator. But how is the authoritative version to be identified? Other problems are rooted in the nature of the electronic medium, such as reverse compatibility (wills stored in formats that later become outmoded may not be capable of being read in the future), or in hardware (the deterioration of storage media, although archival CDs with a shelf life of 100-200 years would appear to be an adequate solution.)

For these reasons the Institute ultimately decided not to recommend full recognition of electronic wills, but instead to recommend that electronic wills be dealt with under the validating power that the Institute also recommended. The Legislature adopted the recommendation and the result can be found in s. 58 of the Wills, Estates and Succession Act.[5] I shall discuss it below. In fact addressing the issue of electronic wills through a validating power is how a number of jurisdictions have approached the matter.[6]

Note that the oral expression by a testator of his testamentary wishes on videotape does not constitute to an electronic will. It would amount to an oral will and such a will is invalid in most jurisdictions.

One of the first cases in which an electronic will was recognized and allowed to take effect under a validation power is Rioux v. Colombe.[7] The deceased committed suicide. She had left an envelope in which she had signed her name. The envelope contained a computer disc that contained a “will”. The evidence was clear that no one else had access to her computer or the document. In those circumstances the court gave effect to the will under its validating power.

Another example is a New Zealand case, Estate of Feron.[8] The testator had given verbal instruction for her will to her solicitor. The solicitor took detailed notes and confirmed the instructions in an email exchange with her client. The solicitor’s practice was disrupted by an earthquake and therefore she could not prepare the will before the client died. The solicitor prepared a draft will based on her client’s instructions and submitted the draft, her notes, and the emails to the court in support of an application for probate. The court rejected the draft, since it did not exist when the testator died, but the court was satisfied that the solicitor’s notes and the emails reflected the deceased’s testamentary intentions and therefore granted probate under the New Zealand validating power.

Yet another case is Re Castro Estate.[9] Javier Castro was hospitalized. He knew that he would not recover from his condition, since he refused a blood transfusion for religious reasons. He wanted to make a will. One of his two brothers produced a tablet and the other brother wrote Javier’s instructions on the tablet with a stylus pen. Javier then added his signature with the stylus pen and his brothers added theirs as witnesses. The court granted probate under the “harmless error” provision of the Ohio wills statute.[10] It was satisfied that Javier intended the document to be his will.

Such informal wills are also possible in Australian jurisdictions. An online news item[11] reported that the deceased’s unsent, draft text message, addressed to his brother, in which he left his property to his brother and nephew could be probated as his will under the Queensland validating provision.[12]

I referred to s. 58 the British Columbia Wills, Estates and Succession Act above. It provides:

58(1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

 (2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

 (3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

The court interpreted this section in Re Hubschi Estate.[13]A boy had been taken in by foster parents and raised by them as their own child, together with their biological children. He was close to them and treated them as his brothers and sisters. He had never married and died at age 56 of post-surgery complications. One of his foster siblings searched his house for a will, but found only a document on his computer, entitled “Budget for 2017” It contained the statement: “Get a will made at some point. A 5-way assets split for remaining brothers and sisters. Greg, Annette, or Trevor as executor”. Unless this statement could be recognized as a will, the deceased would have died intestate and his birth mother’s relatives, who lived in Switzerland and whom he had never met, would inherit his estate. The siblings submitted the statement for probate. The court was satisfied by the evidence that the statement was created by the deceased. Since there was evidence that he looked at the statement on the day he died, it could be inferred that it reflected his testamentary wishes. Although the statement did not comply with the formalities of a formal will, the court granted an order under s. 58 validating the statement as the deceased’s will.

In my opinion the decision in Hubschi was eminently sensible. Moreover, I am also of opinion that until we can develop proper safeguards for electronic wills, dealing with such wills under the validating power is a workable and effective solution.

[1]    S.O. 2000, c. 17.

[2]    Ibid., s. 31.

[3]    Nevada Revised Statutes, c. 133 – Wills, s. 185, added by S.N. 2001, c. 2340.

[4]    https://www.bcli.org/project/wills-estates-and-succession-modern-legal-framework (2006), pp. 31-32.

[5]    S.B.C. 2009, c. 13.

[6]    For a helpful discussion of the way in which the British Columbia statute has addressed these issues, see Scott Kerwin, “Validation and Rectification of Defective Wills under the Wills, Estates and Succession Act: The Tranquil Revolution in Probate Comes to British Columbia” (2014), 33 E.T.P.J. 281. The author also reviews how other jurisdictions have dealt with these issues.

[7]    (1996), 19 E.T.R. (2d) 201 (C.S. Que.).

[8]    2012 NZHC 44, [1912] N.Z.L.R. 551.

[9]    (June 19, 2013), Doc 2013ES00140 (Ohio C. of Comm. Pl. Prob. Div.).

[10]   Ohio Revised Code, c. 2107.02.

[11]   https://www.abc.net.au/news/2017-10-09/unsent-text-on-mobile-counts-as-a-will,-queensland-court-finds/9031470, posted 9 October 2017.

[12]   Queensland Succession Act 1981, s. 18, added by the Succession Amendment Act 2006.

[13]   2019 BCSC 2040.

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