Is the time for Electronic Wills now?
A recent decision out of Alberta on holograph wills is interesting. The Alberta Court of Queen’s Bench decision released on February 20, 2020 in Edmonton in the Estate of Dalla Lana, 2020 ABQB 135 starts with the following :
“Mr. Dalla Lana made a will in 1997. On March 1, 2018 (four days before he died) and via notes made on two sticky notes, he made what he described as “changes to my earlier will”. The “changes” if valid, effectively rewrote the entire will.”
The decision then goes on to find that the “two sticky notes” were a valid will. This was one more decision in a long line of cases (in substantial compliance jurisdictions, unlike Ontario) with wills being upheld when written on everything from napkins to tractor fenders.
If a valid will can be done on a sticky note, one should ask is there any reason now why an electronic will could not be done on an iPad or smartphone?
Pandemic emergency Orders in Ontario have recently accepted wills being signed and witnessed by video conference or by counterpart. However, there is still a requirement for a “hard copy” of the will. A purely electronic will with a digital signature is still not permissible.
Some jurisdictions have already allowed electronic wills into probate. In Australia, the High Court of Queensland gave probate to a will in 2013 contained in the iPad of the deceased, in Yu Estate 2013 QSC 322.
Although digital electronic signatures have been allowed in Ontario for use in some business situations for many years, there are some restrictions on doing electronic will signatures which are found in the Electronic Commerce Act, 2000, SO 2000, c 17,
31 (1) This Act does not apply to the following documents:
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
Given the emergency statutory provisions triggered by the pandemic, it seems inevitable that a meaningful debate will soon ensue about the merits of electronic wills and the broader question of whether Ontario should adopt substantial compliance in its estates legislation.
Thanks for reading.
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