Electronic Wills in British Columbia

In the ever-evolving landscape of legal practices, the introduction of electronic wills in British Columbia has introduced new options for people who need a will. In this article, we will explore the key provisions of the relevant legislation, shedding light on the definitions, processes, and requirements surrounding electronic wills.

Understanding Key Definitions

The Wills, Estates and Succession Act provides definitions crucial to the comprehension of electronic wills. Electronic wills, in essence, refer to wills that are created, recorded, transmitted, or stored in digital or intangible form. To ensure clarity, the legislation introduces terms such as “electronic form,” “electronic presence,” and “electronic signature,” each contributing to the framework of electronic wills.

An “electronic will” is defined as a will in electronic form. The term “electronic form” specifies that the will must be recorded or stored electronically, readable by a person, and capable of being reproduced in a visible form. Electronic signatures, as stipulated in the legislation, are deemed equivalent to handwritten signatures. The legislation makes it clear that an electronic will is conclusively deemed signed if the electronic signature is in, attached to, or associated with the will, signifying the will-maker’s intent.

The concept of “electronic presence” is pivotal in the execution of actions typically requiring physical presence. In the context of making a will, if the will-maker and witnesses are in each other’s electronic presence, the will may be executed by signing complete and identical copies in counterpart. “Electronic presence” normally means a meeting by video, such a Zoom or Microsoft Teams meeting. This provision recognizes the modern reality of remote interactions while ensuring the integrity of the testamentary process.

Must be in written form – While traditionally a will must be in writing, the legislation recognizes electronic form as a valid medium. Therefore, an electronic will satisfies the writing requirement, aligning with the evolving technological landscape. You, therefore, cannot do a video will (however, if you are an executor who finds a video will you should obtain legal advice about how to address it).

Signature and witnesses – The legislation maintains the importance of a signature in the will-making process. For an electronic will to be valid, it must be signed at its end by the will-maker, with the signature acknowledged in the presence of two or more witnesses. These witnesses, who must be at least 19 years old, play a crucial role in ensuring the authenticity of the will.

Validity – An electronic will is deemed a will for all purposes under the legislation. However, if a will does not comply with the specified requirements, it may be deemed invalid unless the court orders its effectiveness, or it is recognized as valid under alternative provisions within the legislation. 

1. Cross-Jurisdictional Recognition:

   • Addressing concerns regarding the recognition and enforcement of electronic wills in jurisdictions outside British Columbia. Other jurisdictions do not recognize electronic wills. 

2. Data Security and Loss Risks:

   • Concerns about the potential loss, corruption, deletion, or misplacement of electronic wills and the risk of data breaches. Your will may be destroyed due to issues with the computer system that stores it. 

3. Accessibility and Unauthorized Access:

   • Evaluation of the ease with which executors can retrieve electronic wills, including deleted versions, and the likelihood of unauthorized access, copying, or sharing. If you are storing your own electronic will you want to ensure that you have fully considered the data retention issues. If you are not skilled with computers you should consider having a paper will.

4. Integrity and Unauthorized Changes:

   • Assessing the risk of unauthorized alterations or revocations to an electronic will, along with the potential removal of associated document information like metadata. You need to ensure that your will is properly stored to ensure that there are no issues when it is submitted to probate. 

5. Verification Challenges:

   • Addressing challenges related to verifying the integrity of electronic wills, particularly when the document is left in an editable format and its last save date differs from the purported creation date. Finalizing an electronic will properly is essential.

6. Changes and Revocation Ambiguities:

   • Analyzing scenarios where a will-maker revokes an electronic will, either by intentional destruction or deletion, and the potential for confusion if no record is left or witnesses are unavailable. When a paper will is destroyed it is presumed to have been revoked. Electronic wills can easily be copied or may inadvertently be deleted, which adds uncertainty to what will happen when they are submitted for probate.