Electronic wills now in effect in British Columbia
The amendments, pursuant to Bill 21 – 2020: Wills, Estates and Succession Amendment Act, 2020, received royal assent in August 2020. The presence provisions came into effect immediately, allowing the role of witness to be satisfied electronically and aiding estate planning during the COVID-19 pandemic.
The remaining amendments to the Act are now in force, with the result that Canadians resident in the province can now draft and sign a will without recourse to a paper copy or witnesses who are physically present at signing. An electronic will must be recorded or stored electronically, be readable by a person and be capable of reproduction in a visible form.
According to the Act, “electronic” is defined as “created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means.” To have an “electronic presence”, two or more people in different locations “communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location.”
A testator wishing to alter an electronic will must delete the original copy and create a new valid electronic will. To revoke an electronic will, the testator must delete the electronic version with the intention of revocation or destroy all or part of a paper version of it in the presence of a witness. The amendments note that “an inadvertent deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.”
“These changes certainly will provide greater flexibility and ability to the public to make wills, both during and outside of a pandemic,” says James Zaitsoff, Civil Litigator at law firm Owen Bird. “However, as electronic wills become more common, problems may arise. The possible existence of an electronic will creates uncertainty as to what document is actually the last will of a deceased person.”
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