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Electronic Wills Encore: New BC Legislation

In a blog posted on 2 June 2020, I wrote about electronic wills and raised the question whether the time had come that we should introduce legislation authorizing them.[1] The question had become particularly urgent during the COVID-19 Pandemic and the social distancing restrictions the authorities imposed because of it. Most of the Canadian provinces passed ministerial orders that allowed the formal requirements for making a will to be satisfied by means of audio-visual communication technology and also permitted the signing or subscribing of complete, identical copies of a will in counterpart.[2] These orders were effective for the duration of the emergency. But this raised the question whether we ought now to enact legislation that would recognize electronic wills and, in effect, continue the substance of the ministerial orders.

The British Columbia Legislature has answered this question in the affirmative. On 22 June 2020 the government introduced Bill 21 – 2020, entitled Wills, Estates and Succession Amendment Act, 2020. The Bill adds several new sections to the Act.

Section 2 enacts s. 35.1. Subsection (1) recognizes an electronic will, that is, a will that: “(a) is recorded or stored electronically. (b) can be read by a person, and (c) is capable of being reproduced in a visible form”. It also recognizes an “electronic signature”, which it defines as “information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record”.

Section 3 enacts s. 35.1. Subsection (2) permits wills to be made when the relevant persons are in each other’s “electronic presence”, and s. 35.1(1) defines that term as “the circumstances in which 2 or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location”. This provision would effectively make permanent the substance of the British Columbia Ministerial Order that was made for the duration of the emergency permanent.[3]

Section 4 enacts Section 35.1. Subsection (3): “An electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent that the will-maker intended to give effect to the entire will.

The Bill further makes a number of amendments to other sections of the existing Act and makes them either apply to electronic wills, or provides that they not apply to them. For example existing provisions about altering and revoking a will do not apply to electronic wills, but s. 55.1 added by s. 9 of the Bill makes a new provision for revoking an electronic will.

Section 11 validates a will made during the time the ministerial order was in effect if it complies with the amendments. And section 12 revokes the above-mentioned Ministerial Order.

This is an exciting development. It makes British Columbia the first Canadian jurisdiction to recognize electronic wills. Indeed, until now only the State of Nevada had enacted legislation that recognized electronic wills.[4] British Columbia had recognized electronic wills in a sense before this in that its validating power in s. 58 of the Wills, Estates and Succession Act[5] permits the court to make an order that an electronic will be effective as the maker’s will.[6] However the new legislation goes much further by authorizing the making of electronic wills.

The Bill has passed first reading and it is expected that it will soon be enacted. However, I have been informed that it will not come into effect immediately, since new regulations need to be drafted that will take the new legislation into account and will give effect to it.

I believe that the time was ripe for the recognition of electronic wills and I expect that the British Columbia legislation is likely to be copied in other provinces soon.

[1]    “Electronic Wills”. http://welpartners.com/blog/2020/06/electronic-wills/.

[2]    See, e.g., O. Reg 164/20.

[3]    Ministerial Order 161/2020, “The Electronic Witnessing of Wills (COVID-19) Order”.

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

[5]    S.B.C. 2009, c. 13.

[6]    For a good example of how this provision was applied to validate an electronic will, see Re Hubschi Estate, 2019 BCSC 2040.

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