B.C.'s bill on electronic wills, remote witnessing to come into force this December

The Wills, Estates and Succession Amendment Act, 2020, which introduces electronic wills, has been brought into force effective Dec. 1, alongside changes to the Supreme Court Civil Rules, BC Reg 168/2009, to implement the legislation, also taking effect on Dec. 1.

Albert Oosterhoff, counsel at Whaley Estate Litigation Partners (WEL Partners) and professor emeritus at Western University Faculty of Law, provided an update regarding this legal development. A previous post by Oosterhoff called the new legislation, also known as Bill 21 – 2020, “exciting.”

“It makes British Columbia the first Canadian jurisdiction to recognize electronic wills,” said Oosterhoff in an August 2020 update. “Indeed, until now only the State of Nevada had enacted legislation that recognized electronic wills.”

Oosterhoff noted that, while s. 58 of the Wills, Estates and Succession Act, SBC 2009, c 13, allows courts to issue an order stating that an electronic will is effective as the maker’s will, Bill 21 – 2020 takes this further by authorizing the making of electronic wills.

Bill 21 – 2020, which amends the Wills, Estates and Succession Act, builds upon Ministerial Order 161/2020, which was issued on May 19, 2020 to allow the electronic witnessing of wills for the duration of the COVID-19 state of emergency. David Eby, B.C. attorney general and member of the legislative assembly for Vancouver-Point Grey, introduced and initiated the bill’s first reading on June 22, 2020.

The new legislation not only recognizes electronic wills but also permits the signing of remotely witnessed wills. Remote witnessing involves the parties being in each other’s electronic presence, meaning that they are communicating simultaneously via audio-visual technology that allows them to see and hear each other, almost as if they are physically present in the same location. Such parties can use assistive technology if they are visually impaired or hearing impaired.

An electronic will is deemed signed if an electronic signature is found in the will or attached or associated to it in such a way that makes it clear that the maker intended to make the whole will effective. A maker who wishes to alter an electronic will needs to make an entirely new will.

The bill provides additional ways for revoking a will if it is electronic. This can be done by deleting an electronic version of the will, or by burning, tearing or destroying a paper copy of the will. Accidentally deleting an electronic version would not amount to revocation because these methods of revoking should be coupled with an intention to revoke.