In Ontario, a Will has to be in writing and typically an original is required for probate to be granted. With the increase of the technological presence in the everyday life of a typical Canadian, the question remains, should electronic Wills be admitted to probate?
Clare E. Burns and Leandra Appugliesi wrote an interesting paper on this topic titled “There’s an App for that: E-Wills in Ontario” that argued for the development of a legislative scheme in Ontario that admits the possibility of electronic Wills.
In discussing this question, the experience of other jurisdictions was considered, including the United States and Australia.
In 2005, the State of Tennessee was the first American state to recognize the validity of a Will executed with an e-signature. In that particular case, the deceased prepared his Will on his computer and asked two of his neighbours to serve as witnesses. A computer-generated signature was affixed to the Will. Almost ten years later, in 2013, the State of Ohio admitted to probate a Will that was written in the deceased’s own handwriting and signed by him, on a tablet computer.
It appears that electronic Wills are most probably valid in Florida, Texas and California and consistent with existing legislation, though the legislation does not specifically contemplate electronic Wills. The State of Nevada, on the other hand, has specifically enacted legislation which expressly allows for the validity of electronic Wills.
Australia, in comparison to the United States, has managed the question of electronic Wills by making use of the “substantial compliance” legislation that exists in each state, which gives the state courts the authority to dispense with the formal requirements for the execution of the Will. In comparison, the legislation in Ontario is one of “strict compliance” such that the formalities of a Will are required before a Certificate of Appointment is granted.
It appears that in Ontario, though a Court could theoretically admit an electronic Will (i.e. not an original copy) to probate, the formalities in accordance with the Succession Law Reform Act must be met, in any event. As a result, an electronic Will that does not meet any one of the formalities will almost certainly not be admitted to probate.
As various electronic gadgets are now being used more and more, Canadians are also using them to make testamentary documents. In keeping with the realities of contemporary life, it may be that legislative reform is needed.
In discussing the possibility of legislative reform, Ms. Burns and Ms. Appugliesi, also addressed the importance of various policy considerations. In doing so, they addressed the John J. Langbein analysis, which set out four main purposes to the formalities requirements in any Wills legislation:
- Evidentiary: the writing, signature and attestation requirements serve as evidence of testamentary intent in a reliable and permanent form;
- Channeling: the writing, signature and attestation requirements ease the administrative burden on the court system by setting out a uniform checklist of what is required before probate can be granted;
- Cautionary: the formalities are designed to impress the seriousness of the testamentary act upon the testator so as to ensure that he or she has fully thought through the result of executing the Will; and
- Protective: the formalities are designed to reduce the opportunity for fraud and undue influence by involving witnesses in the process.
As litigators, the “evidentiary” and the “protective” purposes are particularly important, as we often consider questions of testamentary intent, undue influence and fraud (albeit more rarely), amongst other things.
From that perspective, any legislative amendments to be made must address the various policy considerations and the implications of any such amendments on the legal system in Ontario.
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