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E-Wills – Times are Changing – for the better?

By Tana Jones (posts)

Effective December 1, 2021, BC Law changed to modernize how Wills are created and signed, and Wills are now allowed to be signed remotely via video conference.

This change was largely as a response to the Covid-19 pandemic, which made it difficult for Wills to be witnessed in the traditional manner (with the Will-maker and 2 witnesses all present in the same room, at the same time).

For estate law, a practice area notoriously slow to keep up with technology, this change is revolutionary BUT there remains a level of risk involved with signing a Will electronically and where the witnesses are separate from the will-maker.  These risks may outweigh the convenience.

When witnessing a Will, it is part of a lawyer’s responsibility to be prepared to later give evidence about the Will-maker’s capacity and state of mind at the time the Will was signed, and to take steps to ensure that the Will was not signed under duress. Video conferencing provides the lawyer with only a limited view of the Will-maker’s situation, and inhibits the lawyer’s accurate assessment of the client’s state of mind. This can lead to further complications if a Will was later challenged on these grounds.

When signing your Will, it is important to consider whether signing your Will electronically may create any issues for your Executor later. If you are unsure, erring on the side of caution and opting to sign your Will in person will be the better choice, to help ensure your wishes are carried out.

If you have questions, contact our experienced Wills & Estates Team – we’re here to help.

Further Details on the Changes:

The BC law (Wills, Estates and Succession Act) was changed to enable the courts to accept Wills that are created on a computer and signed electronically, and which are stored on an electronic device (such as a computer, tablet or phone), and so there is no printed copy, as long as the will can be reproduced in a visible form. An electronic signature is one that is “in, attached to, or associated with the Will” such that it is apparent that the will-maker intended to give effect to the Will.

As for the witnessing of the Will, the law now permits these situations:

  • witnessing by persons who each have their own physical copy of the Will and are in each other’s electronic presence (exe: via live video-call/conference) while in different locations);
  • there can be a mix where two people are physically in the same location as the Will-Maker or one of the witnesses is connected remotely;
  • there still have to be at least two witnesses to the Will, and they can both be present electronically, or one electronically present and one physically present;
  • this does not apply to Wills by members of military forces; and
  • there can be minor formatting differences to the Wills each person has in front of them, e.g., if the Will was shared by email and then printed out separately by the Will-Maker and witnesses. However, the Wills must have identical wording.
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