LEGAL e-DOCUMENTS Dr. Margaret Hall
LEGAL PHILOSOPHY ALS 603 | PERSONAL PLANNING ALS 615
Personal Planning Law and e-Wills
T
he Personal Planning course covers a key area of Notary practice: The law relating to Wills and advance planning (Representation Agreements, Powers of Attorney, and Advance Directives). In addition to learning the law applying in that area, students are introduced to the process of constructing legal instruments that will achieve their client’s objectives. Personal Planning has been and continues to be a very dynamic area of the law in British Columbia, making it an exciting but also challenging area of practice. There is a lot of law in that area and changes to that law are ongoing. Legislation enabling electronic or “e-Wills” is one example of recent changes in the Personal Planning area. Interest in legislation that would enable e-Wills long predates COVID, but the pandemic created a new sense of urgency as the increased risk of serious illness turned people’s minds to Will-making (and also to advance planning) while, at the same time, restrictions were placed on in-person meetings. In May 2020, the British Columbia Legislature passed an emergency order enabling electronic witnessing of Wills; in August, Volume 30 Number 1 Spring 2021
legislation that would amend WESA to enable e-Wills was passed. The legislation enables the requirement of “presence” (as where the Will-maker and the witnesses must be in the “presence” of each other) to be met by “electronic presence,” which is defined in the legislation as “circumstances in which two or more persons 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.”
In May 2020, the British Columbia Legislature passed an emergency order enabling electronic witnessing of Wills; in August, legislation that would amend WESA to enable e-Wills was passed. Where a signature is required, an electronic signature will be considered sufficient. Those amendments have been brought into force and are now part of WESA—Wills, Estates and Succession Act—other parts of the amending legislation have yet to be brought into force. A key question for those interested in the development of e-Wills has been whether a new The Scrivener | www.bcnotaryassociation.ca
regime should be adopted for e-Wills (potentially including an “E-Wills Act”) that would differ in important respects from the law pertaining to traditional Wills. The Uniform Law Conference of Canada (ULCC) Committee on E-Wills (of which I am part) has considered that question in relation to developing model legislation that could then be adopted, with modifications as desired, by the provinces; (the BC legislation has followed the ULCC recommendations in the August 2020 WESA Amendment legislation). The ULCC Committee concluded that the rules applying to Wills generally should apply to e-Wills with modifications as needed (as opposed to a new and separate regime). The requirements of “presence” and signatures would apply to e-Wills (as to traditional Wills), for example, but the definition of both now simply incorporates their electronic versions (with no new rules requiring additional safeguards). It has been suggested that special rules should be put in place to ensure the mental capacity of people making e-Wills, but the ULCC Committee ultimately rejected that suggestion on the basis that e-Will-makers were no more likely to be incapable than traditional Will-makers (and that the same standards for determining capacity would apply). TABLE OF CONTENTS
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