A few months ago, I was sent this article in the Globe and Mail.^[1] The article explores the notion of introducing legislation to legalize electronic wills in Ontario. Although some of us here in the estates and trusts world have experience deducing what the positives and negatives of electronic wills might be, I found the article interesting because it represents an instance where the discussion surrounding electronic wills is making its way into the public consciousness. Fittingly enough, the Ontario Bar Association has declared November as Make A Will month, and I myself have been promoting that fact to friends and family via social media. Interestingly, and perhaps not surprisingly, I have found from conversations with my friends and family that the average person doesn’t really know a lot about estate planning.

This leads me to what I think is the most remarkable tidbit from the article: its mention of a July 2020 poll conducted through the Angus Reid Institute which mentions that 84% of Canadians (and 81% of Ontarians) think that it is legal to sign your will “online” in Canada.

It’s not clear what the survey’s participants understood “online” to mean. Note that as of the date of this blog post, pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020,[2] Ontarians may have their wills attested to by means of witnessing through audio-visual communication and signing in counterparts to satisfy the will execution requirements imposed by the Succession Law Reform Act[3] until an undetermined time (dependent on the status of the COVID-19 pandemic’s impact on Ontario). However, the physical documents must still be physically signed in order to satisfy those requirements; in fact, the Electronic Commerce Act, 2000[4] expressly does not allow wills (nor codicils) to be signed by electronic signature.[5]

While it’s possible that some of the survey’s participants may have known about these provisions, it is more likely that they understood “online” to literally mean an electronic signature on a digital document file. And after all, who could blame participants for thinking this way? Most of us sign plenty of online documents, participate in online banking, and communicate with technological assistance more than we do without such assistance. Furthermore, although the province’s loosening of will-making requirements has made it a bit easier for people to properly execute their estate planning documents, the reality is that many people still opt to do in-person signings as the COVID-19-related provisions have yet to be tested in court; in other words, it seems that nobody has yet challenged the validity of a will signed through the increased flexibility provided for by the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. When dealing with something as critical to the health, maintenance and support of a client’s loved ones as estate planning, practitioners and clients alike opt not to take any chances. The fact that the provisions in question are temporary only adds to this uncertainty.

The need for certainty is a contributing factor as to why the article suggests that there is a growing discussion with respect to this topic. It delineates two schools of thought when it comes to putting together legislation with respect to electronic wills in Ontario:

• One approach is to allow for electronic wills while putting safeguards in place to help formalize the electronic will-making process: two notable safeguards include having one of the two witnesses required by the Succession Law Reform Act to be a member of the Law Society of Ontario, as well as having the will stored by a “qualified custodian” (i.e. an electronic will storage service). In taking this approach, the Government of Ontario may have to establish a regulatory scheme to determine how a given organization could fall within the definition of “qualified custodian”.
• Another approach would be not to have the two aforementioned safeguards, but instead to create an “exact parallel” to paper wills. It would allow for wills that could be both electronically signed by and electronically stored on a digital device, but otherwise have the same compliance requirements that paper wills do under the Succession Law Reform Act.

Certainly, the latter approach would enable electronic will-making to be more accessible to the average person than the former approach, but in an area that has its fair share of claims of undue influence, lack of testamentary capacity, and forgery, it may very well be preferable to have additional safeguards. While both approaches agree with having electronic signatures, note also that the Government of Ontario would have to amend the Electronic Commerce Act to accommodate either of them.

Both approaches could also benefit from tools already available via popular document processing programs. For example, Microsoft Word allows users to timestamp a document before it is saved as a PDF, and this is a feature that practitioners have been using to better protect documents signed by means of audio-visual communication through the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 from scrutiny.[6] There has also been discussion of using blockchain technology to validate wills, as such technology serves as a distributed, decentralized, public ledger that is extremely difficult to alter.[7]

Should electronic wills legislation require such technological features to be implemented? Remember, the challenge with electronic documents is that they are much trickier to regulate than paper documents. One can only do so much with a pen and paper. Conversely, with a seemingly endless amount of systems, programs, service providers, and file formats from which to choose, the capabilities of electronic documents are far from limited.

This translates into the Government of Ontario having a lot to consider with respect to electronic wills, particularly with how the introduction of legislation allowing them would interact with Ontario’s existing legislation. For example, the Succession Law Reform Act allows one to revoke a paper will that they have previously made by physically tearing it up or burning it. How can you do this for an electronic will, which can (unlike an original paper document, which can eventually deteriorate), theoretically be eternal?

Appropriately, other jurisdictions have attempted to answer these questions and address these concerns by moving forward with legislation allowing for electronic wills. For example, British Columbia has introduced its Wills, Estates and Succession Amendment Act, 2020.[8] It amends British Columbia’s existing Wills, Estates and Succession Act[9] by allowing for wills in an “electronic form” (i.e. wills that can be recorded or stored electronically, read by a person and reproduced in a visible form) and to be signed via “electronic signature”. It also allows wills to be witnessed and signed in one’s “electronic presence”. Furthermore, it addresses the aforementioned revocation question by providing that an electronic will may be revoked by “deleting one or more electronic versions of the will or part of the will with the intention of revoking it”, as well as by printing out and tearing or burning it.

Note that the legislation also allows for revocation “by any other act” of the will-maker, if the court determines that the act in question was done with the intent of revoking the will. This point is interesting because it is in line with B.C.’s “substantial compliance” approach to will-making, whereas Ontario takes a “strict compliance” approach to will-making. The difference between these approaches is what one might think: under “substantial compliance”, a will does not have to satisfy all of the statutory formality requirements to be valid so long as a court can reasonably determine what the intent of the will-maker was, whereas under “strict compliance”, a will is not valid unless it follows the statutory requirements.[10]

In Hubschi Estate (Re), 2019 BCSC 2040, a case very much related to electronic wills, the Supreme Court of British Columbia demonstrated the lengths to which B.C.’s “substantial compliance” approach can be stretched. In that case, the testator, who passed away in June 2017, did not did not leave a physical will. After conducting a search of the testator’s computer, the testator’s foster brother found a document titled “Budget for 2017”. The document included the line “Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor”.[11] After some deliberation, the Supreme Court of British Columbia found that this electronic record was enough to be a valid “will” for the purposes of Section 58 of the Wills, Estates and Succession Act, and ordered the testator’s assets to be administered in accordance with it.

To some, this may seem like a fair result as it effects what one might reasonably infer to be the testator’s intent, while to others, it may seem problematic because in a substantial compliance regime that allows such documents to be considered wills, people will inevitably have to spend more time, money and energy on going to courts to prove these types of wills than they would if a strict compliance regime were in place. One might also argue that such informal wills are actually at risk of not being an accurate representation of the testator’s intent; what one might write down as an initial or passing thought may change once they actually go through the process of understanding estates law and formally planning and executing a will. That being said, a person dying without a will and having their assets subject to an intestacy regime can be just as, if not more, problematic from both a resources perspective and from the perspective of ascertaining their intent.

It’s worth noting that British Columbia is not the only jurisdiction that has introduced electronic wills. In the United States of America, Arizona, Indiana, Nevada and Florida all have or are considering some form of electronic wills statute (each with its own separate requirements). Notably, Utah is the only U.S. state so far that has adopted the Uniform Electronic Wills Act. That statute was drafted by the U.S. Uniform law Commission, which aims to create uniform legislation across all U.S. states.[12] It will be interesting to see if other U.S. states follow suit. Otherwise, Australia has established an inclusive electronic wills regime, and the United Kingdom is considering something similar.

No matter what your opinion on the details might be, it seems all too likely that Ontario will eventually introduce some form of electronic wills legislation. Giving people more freedom in terms of how to do their will can definitely increase access to justice, but I do think that it must be done in a way that completely addresses the pitfalls that naturally come with traditional will-making (which, again, include things like undue influence, lack of testamentary capacity, and fraud). In any event, there very well may be a day 84% of Canadians (and 81% of Ontarians) are correct in their thought that it is legal to sign your will “online” in Canada.

[1] Christine Dobby, “Ontario eyes converting emergency pandemic measures on wills into permanent legal reforms” (21 September 2020), online: The Globe and Mail <https://www.theglobeandmail.com/business/article-ontario-eyes-converting-emergency-pandemic-measures-on-wills-into/>. You may need a subscription to access the article.

[2] Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c. 17.

[3] Succession Law Reform Act, RSO 1990, c S.26.

[4] Electronic Commerce Act, 2000, SO 2000, c 17.

[5] Note that these principles similarly apply to powers of attorney.

[6] The idea behind this is that once the practitioner—who has been retained to draft the will—completes the will, they only send the PDF to the client/other witness(es). A PDF cannot be edited in the same way as a .doc (or .docx) file, and thus it better demonstrates what document was actually sent and printed.

[7] Although a full discussion of blockchain is beyond the scope of this blog post, I hope to write about this topic in the future.

[8] It has received royal assent, but is not yet in force.

[9] Wills, Estates and Succession Act, SBC 2009, c 13.

[10] Ontario courts have made rare exceptions to its strict compliance approach. See, for example, Sisson v Park Street Baptist Church (1998), [1998] OJ No 2885, 80 ACWS (3d) 1279.

[11] The testator’s foster brother, foster sister and nephew, respectively.

[12] Canada has a similar organization: the Uniform Law Conference of Canada.