Gillian Crouch, Wills & Estate Lawyer
Gillian Crouch Law
Wills are a symbol of tradition. They are a document that, in one form or another, has been around for millennia and today may still be adorned with archaic flourishes like wax seals, ribbons, and the heading, “Last Will and Testament”, typed in gothic font
While a symbol of tradition, will execution has recently been brought into the modern age in British Columbia. In response to the isolation measures triggered by the global pandemic, legislation was passed to amend B.C.’s Wills, Estates and Succession Act (“WESA”), to allow for wills to be made by the will-maker while in the electronic presence of others.
Up until recently, a typical will in British Columbia was only valid if the will-maker signed the will in the physical presence of at least two witnesses who then signed the will in the physical presence of the will-maker. Social distancing policies made signing wills pursuant to this requirement difficult or even impossible in many situations.
Bill 21, which amends WESA, allows the will-maker and witnesses to be in each other’s “electronic presence” when signing a will. This aspect of Bill 21 is retroactive to March 18, 2020 and allows for the will-maker and witnesses to sign physical copies of the will while together on video-conference technology. But that isn’t the most remarkable change to WESA; Bill 21 takes another step toward modernity by allowing such persons to sign a digital version of the will using their electronic signatures. These portions of Bill 21 are not yet in force.
These changes to WESA impact persons beyond just those isolated as a result of the current pandemic. British Columbians who are quarantined for whatever reason, who are less mobile, who live in remote communities, or who have difficulty attending a lawyer’s office now have one less hurdle when preparing their estate plan.
However, the amendments in Bill 21 are not without their challenges. Practitioners drafting wills need to be vigilant against potential fraud or undue influence. If wills are being signed virtually, practitioners can no longer create a controlled signing environment where they can ensure that the will-maker truly consents to the terms of the will and that such consent is not prompted by a greedy beneficiary hidden just outside of the camera view.
As with any significant change to legislation, many questions arise with few immediate answers. How do we appropriately assess a will-maker’s capacity to make a will? How do we ensure that the electronic signature is the will-maker’s? How far will the use of electronic wills be taken? Will a post on social media with witnesses signing in the comments be sufficient, and is it okay if it is? Right now, all I can tell you is to keep tuning in as this will undoubtedly be an area of significant commentary.
This article is intended as a general source of information only and should not be considered or relied upon as personal and/or specific financial, tax, pension, legal, or investment advice.
BC’s Make-a-Will Week is October 4 – 10, 2020. MAWW is a Ministry of Justice campaign that brings awareness to the importance of creating and maintaining an up-to-date will, which ensures that the people, charities and organizations you care about most receive the benefit of your estate.
In conjunction with the Leave a Legacy Vancouver program of the Canadian Association of Gift Planners, we are sharing tips and info throughout the week to help our readers learn more about wills and their pertinence in ensuring that final wishes are understood and executed. Visit our blog all week for key posts related to MAWW and will preparation.