British Columbia Allows Electronic Wills – A Glimpse into Ontario’s Future?

  • 30 avril 2022
  • Stephen Hsia, Miller Thomson LLP, Vancouver

On December 1, 2021, British Columbia became the first province to allow electronic wills – fully digital wills.

This development is welcome news for many Ontarians with assets in BC. These Ontarians can now make BC-specific wills fully electronically.

While Ontario law currently does not permit electronic wills, BC’s new rules might also be of interest to many Ontario lawyers and law reform advocates who can now look west of the Rockies for inspiration for their own made-in-Ontario law. Could BC’s new electronic wills regime be a glimpse into Ontario’s future?

Making an electronic will

Before December 1, 2021, a will-maker could only make a valid will under BC law by signing a physical will with wet ink in the presence of two witnesses (who may be physically or virtually present – i.e. linked to the will-maker by videoconference). The two witnesses then had to sign the same physical will or a counterpart with wet ink in the will-maker’s physical or virtual presence.

Since December 1, 2021, will-makers now have another option under BC law: electronic wills. These wills can be signed and stored completely digitally. No printed original, paper copy, or even wet ink signatures are needed. Rather, the will-maker and witnesses can sign the electronic will by “electronic signature”. An electronic signature is a signature or identifier, in electronic form, that a person has created or adopted in order to sign a record.  It does not have to be an exact facsimile of the person’s actual signature. Will-makers can store their electronic wills on their own electronic devices or with a “third-party electronic repository”. Examples of third-party electronic repositories could include web- or cloud-based storage platforms.

How might a will-maker sign an electronic will? The electronic wills rules in the BC Wills, Estates and Succession Act (“WESA”) and the BC Supreme Court Civil Rules are still relatively new, and many have and will come up with creative ways to comply with them. Here are two possibilities: