On December 1, 2021, British Columbia (“B.C.”) began to formally recognise electronic wills as valid through the formal coming into force of the Wills, Estates and Succession Amendment Act, 2020 (“WESAA”). Consequential amendments to the Supreme Court Civil Rules, BC Reg. 168/2009, included changes to allow for electronic witnesses of electronic wills.

B.C., like other Canadian jurisdictions, had implemented temporary measures given the concerns raised by in-person contact by COVID-19. Ontario, for example, introduced temporary measures allowing electronic witnessing throughout the pandemic, and, as we wrote in November of 2021, Ontario is updating its Probate Process as of January 1, 2022, through Bill 245Accelerating Access to Justice Act, 2021. The Bill introduced the Succession Law Reform Act (“SLRA”). As part of the changes, the virtual witnessing of wills and power of attorneys is now allowed on a permanent basis in Ontario.

Ontario’s approach to electronic witnessing of wills

Under the amendments made to section 4 of the SLRA, in order for a virtual witnessing of a will or power of attorney to be valid, the following conditions must be met:

  • at least one of the witnesses must be licensed by the Law Society of Ontario;
  • the audio-visual communication technology must allow participants to see, hear and communicate with one another in real time;
  • the testator and witnesses must sign the documents contemporaneously; and
  • the documents signed by the testator and the witnesses must be complete and identical

The changes in Ontario were welcome, and have been in place since May of 2021. The changes codifying the same process in B.C. are also not unexpected. The original bill was introduced in 2020 and courts in B.C. have already confirmed that they were willing to treat electronic wills as valid, as was the case in Hubschi Estate (Re)2019 BCSC 2040.

Curing an electronic will in B.C.

In the Hubschi case, the testator died without a formal will that would meet the requirements of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA). However, after a search of his home, his foster siblings found a document on his computer with a simple note to himself which read:

“Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor”.

The question presented to the justice presiding over the case, Justice Armstrong, was whether the above three-sentence note could be cured pursuant to s. 58 of WESA which grants judges discretion to cure a will that is in substantial compliance with the requirements of WESA. Justice Armstrong found that, in fact, the three-sentence document could be cured as the testator’s intentions were reflected in this document. Thereby granting the testator’s wishes to split his estate between the foster siblings he grew up with rather than estranged blood-related family members in Switzerland.

Ontario moving to substantial compliance regime in 2021

Had the case been heard in Ontario in 2019, which, at least until January 1, 2022, is a “strict compliance” jurisdiction, the result would have been very different. As described above, Section 58 of the WESA grants B.C. justices discretion to arrive at a just result based on “substantial compliance” with the requirements of WESA. In Ontario, a justice making a ruling under the strict compliance requirements would not have been able to cure the three-sentence document, and the situation would be treated as an intestacy. Intestacy is simply a situation where an individual dies without a formal will. In Ontario, the Office of the Public Guardian and Trustee would have intervened and the estate would likely have been divided between Mr. Hubschi’s blood relatives in Switzerland, rather than the foster siblings he described in his three-sentence document.

The changes introduced in SLRA will grant judges in Ontario greater discretion and allow judges to accept testamentary instruments that substantially comply with legislation, thereby making Ontario a “substantial compliance” jurisdiction like B.C..

However, it should be noted that s. 21.1 of the SLRA explicitly excludes electronic wills. Judges in Ontario will continue to be unable to cure electronic documents and recognize electronic documents as valid wills. So the outcome of a case like Mr. Hibachi’s would likely not change even after the SLRA changes come into force on January 1.

Overall, electronic wills present several challenges for individuals dealing with estate questions. The rules surrounding electronic wills and electronic witnessing are not well known and many individuals may be unaware that they can now prepare a will without leaving their homes.

The changes in Ontario and B.C. may also lead to changes in other Canadian jurisdictions increasing awareness of modern options for individuals that are unable or unwilling to visit physical offices during the current pandemic or in the future.

Adding validity to the possibility of changes across Canadian jurisdictions is the fact that the Uniform Law Conference of Canada (“ULCC”) approved in principle amendments to its Uniform Wills Act to allow for the drafting of electronic wills in 2020. The ULCC was formed in 1918 and has since provided independent and informed analysis and recommendations for the harmonization and reform of laws in Canada. Therefore, it is possible that if the changes in B.C. and Ontario to allow electronic wills are successful, similar changes will also be implemented throughout Canada.

Contact Toronto Estate Lawyers at Derfel Estate Law for assistance with estates involving Electronic Wills and Power of Attorneys

At Derfel Estate Law, our experienced team of estate lawyers are always up to date on estate litigation cases and can assist in contesting a will. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.