December 1st, 2021 marked a significant, permanent change in British Columbia’s laws concerning wills. The Wills, Estates and Succession Amendment Act, 2020 came into force on this date, and together with amendments to the Supreme Court Civil rules, BC Reg. 168/2009, electronic wills are now permissible in B.C.
B.C. had already implemented emergency measures during the Covid-19 pandemic permitting the execution of electronic wills. However, this was only temporary, and the amendments that came into force on December 1st, 2021, made the change permanent.
The expansion into novel territory with electronic wills has been brewing for some time. As discussed in one of our previous blogs, under B.C.’s Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), the B.C. Supreme Court found an electronic document on the deceased’s computer to be a valid testamentary instrument pursuant to the curative provisions in the WESA.
The discussion on permitting electronic wills has been one tempered by a strong sense of caution. B.C. remains the only Canadian jurisdiction to permit them, and prior to the enactment of amendments permitting electronic wills in B.C., south of the border, in the United States, only Nevada has enacted similar legislation.
There are valid concerns with electronic wills. That being said, the broader social trend of digitalization is far-reaching, and the legal field is in no way immune to its pull.
Recent amendments to the Succession Law Reform Act (the “SLRA”) pursuant to Bill 245 will relax Ontario’s strict compliance regime, and grant the courts discretion to order the validity of some improperly executed wills. Nonetheless, the new section 21.1 of the SLRA, which grants the courts these powers, explicitly excludes electronic wills.
Outside of B.C., the provinces seem content to wait and see how electronic wills will play out. Despite this reluctance to dive in, in 2020, the Uniform Law Conference of Canada (the “ULCC”) approved in principle amendments to its Uniform Wills Act to allow for the drafting of electronic wills.
If the introduction of electronic wills in B.C. proves to be a success, we may see other jurisdictions rapidly adopting similar changes.
In the interim, those of us working in the realm of estates should keep their eyes open to the developments and issues that arise in B.C. These will likely prove relevant to other provinces if and when they should adopt electronic wills.
Thank you for reading and have a great day!
Suzana Popovic-Montag & Raphael Leitz