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Digitizing the Business of Wills: New BC Amendments on Electronic Wills

Link to: Bill 21

Although this series has addressed interesting possibilities about the future of electronic wills in Canada, especially in light of the COVID-19 pandemic, there is currently almost no legislation on this matter. A brief review of current bills in the provincial legislatures indicates that the governments of nine provinces have not yet introduced any legislative changes to formally allow for electronic wills.

The lone exception is British Columbia, where the government introduced amendments to the Wills, Estates and Succession Act (the “WESA”)[1] in Bill 21 earlier this year. Among other things, the amendments create explicit definitions of “electronic will” and “electronic signature,” and establish the basic procedures by which to make, revoke, or alter an electronic will.

Bill 21 received Royal Assent in August, but the provisions on electronic wills are, at the time of writing, not currently in force. Their intended effects are described below.

An “electronic will” is defined as “a will that is in electronic form”. A will is “in an electronic form” if it is recorded or stored electronically, can be read by a person, and can be reproduced in a visible form. An “electronic signature” is “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”.

The bill amends certain sections of the WESA so that references to, and requirements of, a “signature” can include an electronic signature. An electronic signature “in, attached to or associated with [an electronic] will so that it is apparent the will-maker intended to give effect to the entire will” causes the will to be conclusively deemed signed.

Bill 21 establishes that an electronic will satisfies the requirement that a will be in writing, and is a formally valid will if executed correctly.

The ordinary rule on how to alter a will, which is that “the alteration must be made in the same way that a valid will is made,” is not applied to electronic wills. Instead, an electronic will may only be altered by making a new will.

An electronic will is revoked, in whole or in part, if:

  • The will or a part of the will is deleted by the will-maker, or a person in the will-maker’s presence or under their direction, with the intention of revoking it;
  • The will-maker or aforementioned other person destroys or damages a paper copy of the will, in the presence of a witness, with the intention of revoking all or part of it;
  • The will-maker executes a new will, or a written declaration that revokes all or part of the will, which may also be in electronic form; or
  • The will-maker or aforementioned other person does any other thing that a court, applying the curative provision, finds to have had an apparent consequence and been done with the intention of revoking all or part of the will.

This section also clarifies that the inadvertent deletion of an electronic version of a will is not evidence of an intention to revoke the will.

The provisions above are not the only intended effects of Bill 21, which also establishes a definition of “electronic presence” that can allow for a will to be witnessed remotely. People in different locations are in each other’s “electronic presence” if they use audiovisual technology to “communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location.”

[1] SBC 2009, c 13

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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