Sunday, June 28, 2020

Proposed Legislation Recognizes Electronic Wills in British Columbia

The British Columbia Government has introduced legislation to allow digital wills. There are two main components of Bill 21 – 2020: Wills,Estates and Succession Amendment Act, 2020. First, if passed and brought into effect the legislation will provide that a will-maker may make a will digitally, and the witnesses may also sign digitally. Secondly, the legislation will allow the will to be witnessed remotely, in a manner similar to that provided by the emergency order during the Covid – 19 state of emergency.

The legislation amends section 37 of the Will, Estates and Succession Act, which sets out the formal signing and witnessing requirements for a valid will to recognized wills in electronic form by adding the following subsections:

(3) The requirement under subsection (1) (a) that a will be in writing is satisfied if the will is in electronic form.
(4) An electronic will is a will for all purposes of this Act and any other enactment.
A new section 35.3 recognizes electronic signatures:

35.3 (1) For the purposes of sections 37, 40, 43, 62 and 77,

(a) a reference to a signature includes an electronic signature and a reference to a statement being signed includes the statement being signed electronically, and
(b) a requirement for the signature of a person is satisfied by an electronic signature.
(2) Section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.
(3) An electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.

Section 54.1 provides that to alter an electronic will, the will-maker must make a new will.

There is also a new section providing for how an electronic will is revoked (you don’t have to smash your computer):

55.1 (1) An electronic will or part of an electronic will is revoked only in one or more of the following circumstances:
(a) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, deleting one or more electronic versions of the will or of part of the will with the intention of revoking it;
(b) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will;
(c) the circumstances described in section 55 (1) (a) and (b) [how to revoke will];
(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under section 58 [court order curing deficiencies] that
(i) the consequence of the act of the will-maker or the other person is apparent, and
(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.
(2) A written declaration made in accordance with section 55 (1) (b) may be in electronic form and signed with an electronic signature.
(3) For certainty, 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.

Section 35.2 is the section that will allow remote witnessing of wills. It says:

35.2 (1) In this Part, except in section 38, a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's electronic presence.
(2) For certainty, nothing in this section prevents some of the persons described in subsection (1) from being physically present and others from being electronically present when the action is taken.
(3) If a will-maker and witnesses are in each other's electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.
(4) Copies of a will in counterpart are deemed to be identical even if there are non-substantive differences in the format of the copies.

Section 35.2 will be retrospective to March 18, 2020.  

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