Technology has improved virtually every facet of our lives. Computers and keyboards replaced pen and paper. Virtual court pushed aside physical attendances. It’s now impossible to imagine slow regular mail ever replacing instant electronic email. The latest, cutting-edge technology makes everything better, right?
Well, let’s consider for a moment the cautionary tale of technology causing a disaster in estate planning in Damary v. Bitton, 2022 QCCA 349.
In 1989, Mr. Bitton prepared his first will (“1989 Will”). Everything was fine for a while, until Mr. Bitton was hospitalized due to COVID-19. While at the hospital, Mr. Bitton decided that he wanted to make amendments to his will. He reached out for his computer and sent out a detailed email to his notary outlining his final wishes (“2020 Will”). Following a phone conversation to confirm his instructions, Mr. Bitton’s notary prepared a draft of his will. However, unfortunately Mr. Bitton passed away before he had a chance to sign the draft version of the 2020 Will.
Was there a valid 2020 Will? Mr. Bitton’s son applied to probate the 1989 Will. Mr. Bitton’s wife, on the other hand, brought an application to the court to probate the 2020 Will and the matter ended up in court.
The trial judge concluded that the 2020 Will was invalid because the email could not be considered to have been signed and was not prepared before witnesses. On appeal, the Quebec Court of Appeal held that the trial judge correctly applied the law and there was no reasonable chance of success on appeal.
Ironically, if Mr. Bitton had written out his wishes on a napkin instead of sending out an email, his “2020 Will” would have likely be held up. Both Quebec and Ontario have legislation that allow “holograph wills”. In Ontario, Section 6 of the Succession Law Reform Act provides that a testator may make a valid Will wholly by his or her own handwriting and signature, without formality, and without presence, attestation or signature of a witness.
Sometimes, technology provides a false sense of security. Mr. Bittons probably felt that sending out an email to his notary with express instructions was the more certain and “formal” method of changing his will. However, had Mr. Bittons done exactly the same thing but on a napkin instead of an email it’s likely that there would have been a higher chance of the court declaring his 2020 Will to be valid.
Thanks for reading! Excuse me, I have to attend to my emails now..