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LEGAL E-DOCUMENTS
Dr. Margaret Hall
LEGAL PHILOSOPHY ALS 603 | PERSONAL PLANNING ALS 615 Personal Planning Law and e-Wills
The 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, 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.”
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 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).
The suggestion that e-Wills should be made only with the assistance of a Notary or lawyer (as required in the May 2020 Emergency Order) was rejected by the ULCC Committee as an unnecessary barrier to Willmaking, and one that would mark a significant break with centuries of allowing testators to make their own Wills.
Again, the ULCC Committee concluded that a “homemade” e-Will was no more likely to be suspect than a homemade traditional Will, and the same safeguard would apply; in either case, the homemade Will would be more vulnerable to challenge than the Will made with professional assistance.
The ULCC Committee identified the law relating to alterations made to Wills (requiring certain formalities for those alterations to be valid) as one area where the nature of e-Wills did require a substantively different rule. Those formal requirements simply made no sense in relation to e-Wills. Therefore, an alteration to an existing e-Will is not possible; those wishing to alter an e-Will must make a new Will. This approach has been adopted in BC’s WESA amendment legislation.
A second area where the nature of the e-Will creates special issues is revocation—is an e-Will revoked by deleting it? The traditional rule of revocation applies to the “original Will”—I can revoke my original paper Will by physically destroying it, for example, and my revocation is successful (even if copies remain). How can that rule apply to e-Wills, if at all?
The approach decided on by the ULCC Committee (and incorporated in the BC legislation) is to include provisions addressing the special nature of e-Wills together with traditional rule relating to revocation as follows: • A Will may be revoked 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; • A Will may be revoked 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; • A will may be revoked by another Will made by the
Will-maker in accordance with this Act; • A Will may be revoked by a written declaration of the
Will-maker that revokes all or part of a Will made in accordance with section 37 (that may be made in electronic form and signed with an electronic signature); • A Will may be revoked 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. • 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. The potential for inadvertent (or more sinister) deletion, and what may be the difficulty in establishing intent in individual circumstance, will be something to watch in the coming years as the legislation is put into practice.
Given the new-ness of this legislation, clients may not be aware that e-Wills are now an available option. Informing clients of that option where circumstances indicate it could be useful to them is both a valuable service to the client and ensures that practices relating to the use of e-Wills continue to develop. New law is of no use unless it is used.
Because e-Wills are new, clients are likely to have many questions about them and look to the Notary’s expertise for answers; for that reason client-centred practice in the area of Wills (following the “IKEAD” model) now requires a thorough knowledge of e-Wills.
As the use of those instruments becomes more common, careful attention to the development of best practice will also be essential. This is an exciting opportunity to be at the forefront of providing value-added service to clients in this growth area. In the future, look for the development of other e-instruments incorporating similar rules and best practices: e-Representation Agreements; e-Powers of Attorney; and e-Advance Directives
It has truly been my privilege to serve as Director of the Program over this past year-anda-half. The emergence of COVID during this time has certainly created challenges, but also new opportunities for innovation and learning (as the e-Wills legislation discussed above demonstrates). The year 2020/2021 has also seen changes to the ALS teaching faculty. s
