WEL Partners has written before about the curative provision at s. 58 of British Columbia’s Wills, Estates and Succession Act (the “WESA”),[1] and the absence of any similar provision in Ontario. S. 58 allows a court to order, among other things, that a “record” of a testator’s intentions is a valid will, even if it does not comply with the formal requirements to execute a will. Previous WEL blog posts on this provision have addressed a case in which a will had no witnesses,[2] and a case in which a will had been revoked by the dissolution of a marriage-like relationship.[3] In both cases, the court ruled that the wills were valid.

The meaning of the word “record” includes “data that… is stored electronically… can be read by a person, and… is capable of reproduction in a visible form”. In other words, it is possible for a document that only exists in an electronic form, such as a Microsoft Word document that has never been printed, to be a valid will in BC, though its validity would require a court decision based on the factors described in the WESA and the case law. Put simply, these factors are whether the “record” is authentic, and whether the court is satisfy that it represents the testator’s testamentary intentions.

Hubschi Estate (Re)[4] demonstrates the curative provision’s applicability to an electronic record. In this case, a Microsoft Word document found on the testator’s computer was found to be a valid will. The full text of the will was: “Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”

By contrast, Ontario’s Succession Law Reform Act[5] does not contain a curative provision. Only two types of wills are valid in Ontario: one that complies with all of the formal requirements (in writing, signed at the end by the testator, signed by two witnesses), or a holograph will that is entirely handwritten by, and signed by, the testator. The courts do not have any power to validate an electronic document that purports or otherwise appears to be a will.

In light of this difference on the validity of electronic wills in different jurisdictions, here is a brief overview of how the curative provisions in the other provinces and territories address, or do not address, this issue:

Alberta,[6] Saskatchewan,[7] Manitoba,[8] New Brunswick,[9] Prince Edward Island,[10] Nova Scotia,[11] and Nunavut:[12] The curative provisions in these jurisdictions do not include the broad definition of a “record” used in BC. The provisions are applicable to:

• a “writing” in Alberta and Nova Scotia;
• a “document or writing” in Saskatchewan;
• “a document or writing on a document” in Nunavut;
• “a document or any writing on a document” in Manitoba and New Brunswick; and
• a “document” if it purports to be a will, or “a document or writing on a document” if it purports to revoke, alter, or revive a will, in PEI. 

Quebec[13]: A will that is executed in the presence of witnesses, or a holograph will, can be valid despite not meeting all of the formal requirements “if it meets the essential requirements” of the form in question. This provision does not refer to notarial wills.

Newfoundland and Labrador,[14] Yukon,[15] and Northwest Territories[16]: These jurisdictions do not have curative provisions.

As the legal profession continues to adapt to technology, especially in light of the challenges raised by the COVID-19 pandemic, it appears likely that at least some Canadian jurisdictions will need to more clearly address the questions of whether electronic wills are valid, and whether they should be. A curative provision is a useful tool, but is likely not the ultimate answer to these questions.

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[1] SBC 2009, c 13

[2] Gregoire v Cordani, 2020 BCSC 276. WEL blog post: https://welpartners.com/blog/2020/05/how-b-c-handles-a-non-compliant-will/

[3] Jacobson Estate (Re), 2020 BCSC 1280. WEL blog post: https://welpartners.com/blog/2020/09/jurisdictional-differences-in-estate-planning-the-curative-provision/

[4] 2019 BCSC 2040

[5] RSO 1990, c S.26

[6] Wills and Succession Act, SA 2010, c W-12.2

[7] The Wills Act, SS 1996, c W-14.1

[8] The Wills Act, CCSM c W15

[9] Wills Act, RSNB 1973, c W-9

[10] Probate Act, RSPEI 1988, c P-21

[11] Wills Act, RSNS 1989, c 505

[12] Wills Act, RSNWT (Nu) 1988, c W-5

[13] Civil Code of Québec, CQLR c CCQ-1991

[14] Wills Act, RSNL 1990, c W-10

[15] Wills Act, RSY 2002, c 230

[16] Wills Act, RSNWT 1988, c W-5

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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.