Electronic wills are currently a hot topic for wills and estates practitioners, but how the law ought to be updated to permit electronic wills is far from straight forward. A new report issued by the Alberta Law Reform Institute in March of 2024 focuses on the unique legal challenge surrounding the alteration and revocation of electronic wills. 

As noted in the Report:

… electronic wills present a unique challenge. Unlike a pen mark on a paper will, it is harder to identify when an electronic will has been altered or revoked by a key stroke. It is also harder to identify whether or not the person making the changes actually intended them to alter or revoke their electronic will. 

The alteration of electronic wills

One of the 11 recommendations in the Report addresses the alteration of electronic wills, recommending that the law which currently governs will alterations be extended to electronic wills. This recommendation is noteworthy since the law elsewhere in Canada is divided as to whether or not a testator may alter an electronic will. 

In both British Columbia and Saskatchewan, the only provinces where legislation has been passed permitting electronic wills, an electronic will can only be altered by making a new will. In comparison, the Uniform Wills Act endorsed by the Uniform Law Conference of Canada permits electronic wills to be altered so long as those changes are electronically signed and witnessed. 

Dealing with altered electronic wills can be challenging because how the will was changed is usually unclear. The new Report explains that metadata, information embedded in an electronic file that reveals when the document was last accessed, edited, and printed, does not indicate how extensively or alternatively, how minimally, the changes to an electronic document are unless a program is tracking the changes. As a result, even if a change to an electronic will is very minor, the altered clause will be struck from the will if the change is not properly initialed and witnessed. 

The revocation of electronic wills

Another interesting issue that is explored in the new Report is whether it ought to be possible to revoke an electronic will through an action, such as deleting the file. In fact, the Institute specifically considered whether revocation of an electronic will ought to require deletion of all copies of the will in the testator’s possession or control. Such a law is currently in force in Indiana. This option ultimately was not recommended – the Institute noted that if this requirement were implemented, it could prove quite onerous for testators, as requiring every copy of an electronic will to be deleted “sets people up for failure”. The Report goes on to note: 

The existence of a single copy of the electronic will that was overlooked in the destruction process could wholly frustrate a testator’s intention to revoke their will. The fact that creating copies of electronic wills is easy, fast, and inexpensive increases the burden that would be caused by this formality.

Instead, the Report recommends permitting an electronic will to be revoked through a physical act, such as a) deleting the file, b) rendering one or more copies of the electronic will unreadable or irretrievable, or c) tearing or burning, or otherwise destroying a paper copy of the will. However, to be effective, that act must also be accompanied by an intention to revoke, and must be witnessed by a third party. The witnessing requirement is recommended in light of “evidentiary concerns” surrounding revocation through action: 

The issue is that merely deleting a copy of an electronic will is not, by itself, sufficient to prove that the testator intended to revoke their will. Accidental deletions are likely to happen and are not meant to be captured as an act of revocation … To revoke an electronic will by deleting it some additional evidence of intention is required, and the minimum evidence required should be clearly set out in the [legislation]. A specified formality will help to move estates involving revoked electronic wills through probate more easily … a witness should be required to any act revoking an electronic will, no matter the medium in which that action occurs

The Institute also contemplates whether it ought to be necessary to have two witnesses for the revocation of an electronic will, similar to how two witnesses are necessary when creating a formal will. Only one witness is recommended to ensure that “the law remains as flexible as possible within the constraints of the evidentiary and protective purposes of wills formalities”. In making this recommendation, the Institute observed that revocation by action often occurs in “situations where time is of the essence, or where there is some need for a quick but uncomplicated method of cancelling an existing estate plan”. 

The law in Ontario

While electronic wills are not currently permitted in Ontario, the Legislature may choose to revisit this issue in the future, in which case the Institute’s work on electronic wills could warrant consideration. In addition to the Report on the Alteration and Revocation of Electronic Wills discussed above, the Institute issued a Report last year addressing the Creation of Electronic Wills, which we discussed in a blog last October: see Electronic Wills Endorsed by Law Reform Institute.

Have a great day!

Suzana.