ELECTRONIC DOCUMENTS
ELECTRONIC WILLS, ENDURING POWERS OF ATTORNEY, AND REPRESENTATION AGREEMENTS
New Rules and Practice Tips Introduction
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OVID-19 has changed the way many professionals are working, including Notaries and lawyers. With people staying home to reduce transmission, that has posed challenges for creating or updating Wills, Enduring Powers of Attorney (EPOAs), and Representation Agreements (RAs). It is important for people to be able to create Personal Planning documents to deal with potential incapacity or hospitalization. To help with that, the BC government passed ministerial orders and amended legislation to allow remote signing and witnessing of those documents. The legislation also allows for purely electronic Wills (e-Wills). E-Wills and Remote Signing of Wills On March 18, 2020, a ministerial order allowed for remote signing and witnessing of paper Wills. In July 2020, the BC government amended the Wills, Estates and Succession Act (WESA) to make the remote signing and witnessing of Wills permanent and allow the creation of e-Wills.
Volume 30 Number 1 Spring 2021
“The WESA e-Will amendments are based on uniform e-Will legislation developed by the Uniform Law Conference of Canada (ULCC), although they were enacted in BC slightly before the ULCC issued its own final version. Since those changes have been made to WESA, they will continue after the pandemic is over. The e-Will amendments to WESA were not yet in force at the date this article was written.”
For remote signing and witnessing, the Will-maker and the two witnesses must be in each other’s “electronic presence.” The amendments to WESA allow for e-Wills to be created. For e-Wills, there is no physical original copy of the Will and there can be many identical electronic copies that are all valid. The amendments specify how e-Wills can be changed or revoked. To change an e-Will, a new Will must be created. To revoke an e-Will, the Will-maker can • create a new Will; • make a written statement (electronic or paper) that the The Scrivener | www.bcnotaryassociation.ca
Sara Pon
Will-maker is revoking the Will, signed by two witnesses; • delete one or more electronic copies with the intention of revoking it; • destroy a paper copy of the Will in front of witnesses with the intention of revoking it; or • do some act that the Court determines under section 58 of WESA to have been done with the intention of revoking it, and the consequence of the act is apparent. The amendments to WESA also allow for both paper and electronic Wills to be signed and witnessed remotely using video technology. For remote signing and witnessing, the Will-maker and the two witnesses must be in each other’s “electronic presence.” That means • the parties must be able to see and hear each other; • the parties must be able to communicate simultaneously; • the technology must be of good enough quality that they can have a normal simultaneous conversation; TABLE OF CONTENTS
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