Last week, the Alberta Law Reform Institute (the “ALRI”) released a new landmark report available online, Creation of Electronic Wills, Final Report 119, which recommends that the law in Alberta be updated to expressly provide for electronic wills.
ALRI is not the first law reform agency in Canada to recommend electronic wills. In 2020, the Uniform Law Conference of Canada (the “ULCC”) also recommended that wills legislation across Canada be updated to include electronic wills, and amended the Uniform Wills Actto reflect its recommendations.
ALRI’s Final Report 119 builds on the amendments to the Uniform Wills Act and largely endorses the ULCC’s provisions related to electronic wills. For example, the ALRI recommends that the legislated formalities for electronic wills mirror the formalities applicable to paper wills, meaning that an electronic will must be in writing, and signed by both the testator and witnesses using electronic signatures. Final Report 119 also recommends permitting electronic wills to be executed using “invisible” digital signatures, meaning that an electronic signature attached to or associated with an electronic will would not be required to have a specific physical location in the will. In terms of the remote witnessing of wills, the Report recommends the execution of electronic wills on online platforms like Zoom, and also concludes that lawyer involvement should not be mandatory for remote execution.
A few noteworthy changes to the law that are not included in the Uniform Wills Act are also recommended in Final Report 119. First, the ALRI recommends authorizing electronic holograph wills, being a will in the testator’s electronic handwriting and signed by the testator with an electronic signature. ALRI suggests that refusing to recognize handwriting in electronic form in an increasingly electronic world frustrates the policy choice behind permitting holograph wills, particularly since “[i]t is possible, perhaps likely, that handwriting in electronic form will become more common.”
Second, the ALRI endorses giving courts the power to validate video wills for probate. To be clear, the ALRI is not recommending that the legislation be updated to expressly permit video wills; rather, the Institute suggests giving the court the power to validate electronic wills, including video wills, through the dispensing power (which is the Alberta equivalent of section 21.1 of the Succession Law Reform Act). As noted in the report:
The reality is that, if electronic wills are to be permitted in Alberta, there is going to be a learning curve. There will be situations where the electronic requirements are misunderstood and, as a result, the electronic will is improperly executed. If the court does not have a wide ability to excuse compliance with the electronic formalities in appropriate circumstances, the testator’s intention may be thwarted by a technology glitch or some other technicality …
ALRI also goes into quite a bit of detail discussing video wills, noting that such instruments “may be more approachable for laypeople … who wish to create a will as quickly and easily as possible.” One issue specifically related to video wills explored in Final Report 119 is the possibility of “deepfake” videos, which are becoming more prevalent and harder to identify. In recommending that the court have the power to validate video wills, the ALRI suggests that “there is little difference between requiring expert evidence to prove a deepfake and requiring expert evidence to prove that a paper will is a forgery” and that the evidentiary risks posed by video wills “are no more pronounced that the risks associated with paper wills or text-based electronic wills.”
Multiple rationales are discussed in the Report to explain why the ALRI is now endorsing electronic wills, including the notion that, as a result of the pandemic, “people are now accustomed to conducting important transactions virtually.” Electronic wills are touted as a way to keep pace with society’s expectations, particularly since people have already started creating electronic wills. ALRI also suggests that permitting electronic wills to be probated will “reduce error costs for those testators who already believe that electronic wills are valid.”
Final Report 119 only addresses the creation of electronic wills; the ALRI plans to release a second report soon which will focus on the alteration and revocation of electronic wills.
At this time, electronic wills are not permitted in Ontario, as noted in subsection 21.1(2) of the Succession Law Reform Act. In light of ALRI’s latest work, however, now may be a good time to revisit this issue in Ontario.
Thank you for reading, and have a great day!