Earlier this year, the Uniform Law Conference of Canada issued a new, consolidated version of the Uniform Wills Act that, at long last, includes electronic wills.
The Uniform Law Conference of Canada, also known as the ULCC, is a national legal think-tank whose sole purpose, as noted on the ULCC website, is to provide “independent and informed analysis and recommendations for the harmonization and reform of laws in Canada.” Back in 2020, the ULCC approved updating the Uniform Wills Act in principle to include electronic wills. Amendments were drafted in 2021, and finally consolidated into the legislation in February of 2022.
Under the latest iteration of the Act, an electronic will must meet five requirements:
- The form of the will must be electronic;
- The form must be readable as text when the will is made;
- The will must be subsequently accessible in a usable form;
- The will must be capable of being retained; and
- The will must be signed electronically.
The commentary accompanying the amended Act notes that the drafters deliberately intended to preclude video wills, at least “at the present time.” The model legislation also does not permit holograph e-wills: see s. 9(2).
For the most part, the Uniform Wills Act treats electronic wills like regular wills, written on paper. Similarities include:
- e-wills must be witnessed by two witnesses, present at the same time, either physically or virtually (s. 5(2)-(3));
- e-wills are subject to the signature placement rule, meaning that the electronic signature on an e-will must be at the end of that instrument (s. 8(1)); and
- e-wills may be admitted to probate under the substantial compliance rule, even if an e-will does not comply with formal execution requirements (s. 17).
The commentary accompanying the Act also notes that the drafters contemplated – but ultimately rejected – requiring e-wills to be witnessed by either a lawyer or a notary. The commentary explains:
… a lawyer/notary requirement for will-making would be a significant deviation from the traditional law of wills, which has always allowed for a testator to make his or her will without professional involvement … To create a lawyer/notary requirement for e-wills only would construct the e-will as a special and distinct form of instrument, rather than a will in a different form (and therefore subject to the law relating to wills generally and equivalent to the traditional written will).
Despite all of the ways that e-wills and regular wills are treated consistently in the legislation, it is impossible to overlook the special and distinct nature of e-wills. For example, the Act addresses whether e-wills subject to an electronic signature verification process are valid (they are), and the circumstances under which a deleted e-will is actually revoked (only if the deletion is intentional – a computer crash, corruption of a file, or accidental deletion will not result in the revocation of an e-will). Clearly, the e-will is a unique testamentary instrument and will give rise to new legal issues, should the uniform legislation be enacted.
To date, the new provisions in the Uniform Wills Act have not been incorporated into the wills legislation in any province or territory, although in late 2021 British Columbia did update its wills legislation to become the first jurisdiction in Canada to permit electronic wills. It will be interesting to see if (and how) other provinces or any of the territories follow suit in the future by permitting e-wills.
Thank you for reading, and have a great day!
Suzana Popovic-Montag
If you’d like to learn more about electronic wills, consider reading: