On May 17, 2023, Saskatchewan became the second jurisdiction in Canada to pass legislation authorizing the use of electronic wills. There is no word yet, however, on when The Wills Amendment Act, 2023, SS 2023, c 45, the aforementioned legislation, will come into force.
Currently, British Columbia is the only Canadian jurisdiction where electronic wills are valid: see the Wills, Estates and Succession Act, SBC 2009, c 13. In Ontario, the Succession Law Reform Act, RSO 1990, c S.26 doesaddress electronic wills, but only to indicate that courts may not validate such instruments as a will under section 21.1, a provision which permits the court to order that a writing or document is valid and effective as a will even if it was not properly executed or made.
While there are only two provinces at this time that have passed legislation to authorize electronic wills, it seems as though it is only a matter of time until other Canadian jurisdictions follow suit. For example, it appears that Alberta is currently considering electronic wills – the Alberta Law Reform Institute started an electronic willsproject in 2022. In 2021, electronic wills were also endorsed by the Uniform Law Conference of Canadathrough updates made to the Uniform Wills Act (the “UWA”).
The popularity of electronic wills is also on the rise internationally, with a growing number of states in the United States enacting the Uniform Law Commission’s Electronic Wills Act. States that now permit electronic wills include Colarado, the District of Columbia, Idaho, Minnesota, North Dakota, US Virgin Islands, Utah, and Washington. Legislation has also been introduced in Missouri, New Jersey and Texas which, if passed, will permit electronic wills.
Rather than enact a new piece of wills legislation, Saskatchewan will be amending and updating The Wills Act, 1996, SS 1996, c W-14.1 to include electronic wills.Among the changes, the legislation will expressly provide for electronic wills executed via an electronic signature. The new amendments also confirm that holograph wills cannot be in an electronic form, that an electronic will cannot be altered, and that a revoked electronic will cannot be revived. In other words, if an individual wants to change or reinstate an electronic will, the only way to do so will be to create a new will. The amendments furtherprovide that a non-compliant electronic will may be saved by the court and admitted to probate using the court’s substantial compliance power, a legislative provision that essentially mirrors section 21.1 of the SLRA.
While many of the changes coming to Saskatchewan can be found in the UWA, there are some differences that merit note. In contrast to the UWA, Saskatchewan’s legislation references regulations which, if enacted, can impose additional witnessing requirements for electronic wills and permit additional ways to revoke electronic wills. It will be interesting to see whether such regulations are in place when The Wills Amendment Act, 2023 does come into force.
With electronic wills being embraced in so many jurisdictions, it may be timely to revisit the topic of electronic wills in Ontario and reconsider whether electronic wills should be permitted.
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