Wills in the digital age

One of the few benefits of the COVID‑19 pandemic has been that it has accelerated change across all businesses and industries.¹ This acceleration of change has been particularly apparent in the trusts and estates industry. For an area of practice that has traditionally been slow to embrace change, there have been an unprecedented number of legislative developments in the past year aimed at modernising and adapting will making to the digital age.

The formalities of executing a will in Canada

The requirements for executing a will in common‑law provinces are relatively similar.² Generally speaking, the will must be in writing and the testator must physically sign by hand (in ‘wet ink’) at the end of the will in the physical presence of two witnesses at the same time. Holograph wills are permitted in most provinces.³

In Quebec, a notarial will must be drawn up by a notary in English or French. The will must indicate the place and date it was made and it must be signed by wet signature by the testator, the notary and a witness.⁴

Emergency orders, regulations and legislation allowing for remote witnessing by videoconference

Following the onset of the pandemic in March 2020, and the logistical challenges faced by lawyers and notaries who could no longer safely meet clients in person for the execution of their wills, many jurisdictions enacted emergency orders and legislation to allow for the virtual witnessing of wills by audiovisual communication technology for a temporary period.⁵ In acknowledging the additional challenges presented by having two persons virtually witness and sign the will at the same time, several common‑law provinces also replaced original emergency orders or introduced additional legislation to allow for identical wills to be signed in counterpart.

In order to safeguard against the risk of undue influence and fraud, many common‑law provinces also implemented certain virtual‑witnessing requirements, such as having one of the virtual witnesses be a lawyer (in the provinces of British Columbia, Manitoba, New Brunswick, Newfoundland, Ontario, Saskatchewan and Yukon) or that the testator receive legal advice in respect of the making, signing and witnessing of the will, as required by the emergency order introduced in Alberta.

In Quebec, a ministerial order was passed to allow notaries to conduct notarial acts (including the drafting of a notarial will) using technological means. The emergency order permits not only that the notarial will may be executed remotely by the respective parties, but also that the testator, witness and officiating notary may execute the will electronically.⁶ Strict and specific guidelines established by the Ordre des notaires du Québec must be complied with in order for a notarial will to be executed remotely and digitally.

The introduction of electronic wills

Building on the emergency orders first introduced in the early months of the pandemic, certain jurisdictions subsequently introduced more substantial and permanent changes to their wills legislation. In recognition of the need for additional flexibility in will making in order to make wills more accessible to the public, British Columbia introduced the Wills, Estates and Succession Amendment Act, 2020 (the Act).⁷ The Act makes the ability to witness wills remotely through the use of audiovisual communication technology permanent in British Columbia. More importantly, the Act, which received royal assent on 14 August 2020, makes British Columbia the first Canadian jurisdiction to permanently recognise electronic wills by expanding the definition of a will such that a will in ‘electronic form’ would satisfy the requirement that a will must be in writing.⁸

The introduction of ‘substantial compliance’ and other significant changes (Ontario)

Ontario also introduced substantive legislative changes impacting will formality requirements, following the original emergency order to allow for remote witnessing and counterparty signing of wills. Bill 245, Accelerating Access to Justice Act, 2021 received royal assent on 19 April 2021 and amends Ontario succession law in several significant ways. In an attempt to address present‑day concerns around predatory marriages and the entitlement of separated spouses upon the death of one of the spouses, many of the key changes presented in the Bill relate to how marriage and separation impact a person’s ability to inherit under a will or on an intestacy. The Bill amends the Succession Law Reform Act (the Reform Act),⁹ so that marriage no longer revokes a will and, except where there is a contrary intention in the will, a testator’s will is to be read as if a spouse who is separated from the testator (under certain conditions) has predeceased the testator.

The Bill amends the Reform Act to permanently provide for the remote witnessing of wills and the counterparty signing of identical wills.¹⁰ It also introduces the concept of ‘substantial compliance’ to the execution of wills in Ontario, such that Ontario will now join several other jurisdictions to include a substantial compliance or dispensing power provision in its legislation. This gives the court authority to, on application, make an order validating a document that does not meet the execution formalities of the Reform Act, if the court is satisfied that the document sets out the testamentary intentions of a deceased.¹¹ It is unclear how far the courts will extend this power. However, the legislation specifically excludes electronic wills from being validated under the authority of this provision.

Digital transformation: welcome developments and new challenges

Although welcome, the recent spate of legislative developments in will formality requirements across Canada brings about additional risks and challenges to consider.

With respect to the remote witnessing and execution of wills, practitioners face greater challenges in being able to assess the capacity of the testator. The presence of duress or undue influence will likewise be more difficult to ascertain. To mitigate these risks, practitioners will need to plan accordingly and consider taking additional precautionary steps. Based on the practitioner’s preliminary assessment of the client’s circumstances, it may also mean that, for certain clients, face‑to‑face meetings cannot be replaced.

The introduction of permanent electronic wills legislation in British Columbia represents an exciting step forward; however, there remain further issues and logistical challenges to address in order for the widespread adoption of electronic wills to be feasible. For instance, without the concept of an original paper will, where should the electronic will be stored to ensure it is safeguarded from tampering or accidental deletion?

Many of these legislative developments to will formalities also heighten concerns around fraud, cybersecurity and protection of privacy. Fortunately, many of these concerns are being addressed through regulations and technology, as vendors offering secure file‑sharing, data‑storage and electronic‑signature software are now commonplace.

In conclusion, the recent legislative changes introduced to modernise will formality requirements represent the beginning of a significant transformation of the trusts and estates industry. More importantly, these legislative changes coupled with technological developments will increase the accessibility of will making to Canadians. According to a survey conducted by the Angus Reid Institute, 51 per cent of Canadians do not have a will.¹² With the possibility of being able to complete much of the will process safely and securely from the comfort of one’s own home, it is hoped that more Canadians will embrace the important process of drafting their wills.