Can I Sign My Will Electronically?
It’s 2022, and finding a printer is like trying to find a needle in a haystack. Most millennials don’t own a printer, and many lost access to their office printers when the pandemic hit––a mini-crisis in and of itself, amidst the global catastrophe of our time.
Yet, even in our paperless pandemic world teeming with encryption technology, electronic signatures on Wills, or electronic Wills, have historically not been valid.
Estate law is slowly evolving
If you’re like most millennials, dealing with the paperwork of a Will is potentially a barrier to getting one. While there are many reasons why someone under 40 wouldn’t have a Will (they feel they are too young, they don’t feel they have enough assets, etc.), the hassle of printing and physically signing Wills or Powers of Attorney doesn’t help with accessibility.
The stats on Canadian estate planning reflect, in part, this hassle: according to a 2018 Angus Reid poll, 51% of Canadians say they have no Will, and only 35% say they have one that’s up to date.
The good news is that things are changing quickly, due in large part to the social distancing guidelines that were introduced during COVID-19. While valid electronic Wills may not exist yet, that doesn’t mean they couldn’t in the future. Keep reading to find out more about the status of virtual and electronic interactions with Wills in Canada.
Canadian legal Will requirements
In most provinces until 2020, a Will needed to meet three requirements to be legal:
The person making the Will––the testator—has a signed and dated physical copy of the Will
The presence of two witnesses who are physically there to witness the testator sign the Will
At least two witnesses who sign the Will “in the presence of the testator”
Note that some people shouldn’t be your witnesses, most notably people who aren’t named as beneficiaries in your Will.
In Ontario, these terms are defined by the Succession Law Reform Act, R.S.O. 1990 (SLRA), which doesn’t specify whether or not a “signature” needs to be done by hand. But a separate act, the Electronic Commerce Act, 2000, S.O. (ECA), specifically excludes electronic signatures for Wills.
Before the pandemic, the only exceptions to these rules were for Wills for active service members of the Canadian Forces, or other members of naval, land, or air forces.
An exception: Holograph Wills
A holograph Will is as old school as it gets: it’s a Will that’s entirely handwritten and signed by the testator. Holograph Wills are exempt from witness requirements, in that they’re still valid if they’re written in the presence of no one without any other signatures.
But when we say handwritten, we mean it. No part of any holographic Wills may be typed, so that excludes any typed forms that have been filled out by hand. The handwritten portion of the Will must be able to stand on its own as a valid and complete expression of the testator’s wishes. It also must be signed, in cursive, by the testator.
Even if the handwritten portion of the Will makes reference to a typed portion, like an email or a Word document, the typed portion will not be admitted into probate (a validation process done by the court for most Wills)—even the court is 100% sure that the typed document was written by the testator.
One province, however, doesn’t allow holograph Wills: British Columbia.
COVID-19 amendments to electronic signature validity for Wills
The pandemic changed everything about the way we interact. As lockdowns ebb and flow across the country, we’ve been forced to rely on digital communication for most aspects of daily life.
With strict social distancing measures in place, many people were left wondering: How am I supposed to get two people to physically witness and sign my Will when I’m not even supposed to be in the same room with most of the people in my life?
It’s tough dealing with physical documents in a largely paperless world––but some provinces are making concessions about what must be in writing and what can be done through digital means. What will that mean for the witnessing of Wills in the long run? We’re still waiting to see what will shake out, but here’s what a testator must do in the following provinces as of now.
On April 7, 2020, under the Emergency Management and Civil Protection Act, the Ontario government announced that testators and witnesses may use “audio-visual communication technology” in the signing of a Will or Power of Attorney.
But that doesn’t mean e-signatures are allowed. They still aren’t for legal Wills and living Wills.
At first, the new rules stated that each person needed to physically sign the exact same copy of the Will or Power of Attorney document.
That meant, in most cases, the testator would sign first and have the other witnesses watching using the audio-visual technology. Then the document would be sent to the first witness, and then off to the second witness with video calls each time.
A complicated process of video calls and physical signatures. Oh, and the rules required that one of the witnesses be a lawyer or paralegal.
The process was cumbersome for everyone involved.
So, two weeks later, the Ontario government announced that physical signatures can be made on “complete, identical copies … in counterpart.” Moving forward, all three signatories are allowed to sign separate copies.
Accelerating Access to Justice Act in Ontario
Since April 2020, the ruling has been extended multiple times. The most recent extension happened on January 15, 2021, and extended the regulation to February 19, 2021. Remote witnessing now stands to become permanent with proposed Bill-245 and The Accelerating Access to Justice Act.
On May 15, 2020, under the authority of the Public Health Act, the Alberta government made a move similar to Ontario: they allowed for the witnessing of a Will with the use of an “electronic method of communication in which they are able to see, hear and communicate with each other in real-time” for the duration of the emergency declaration.
The new regulation does not include e-signatures, or true electronic, or digital, Wills.
The new regulation will lapse in two ways:
When ended by the Minister or the Lieutenant Governor in Council
60 days after the official Public Health Emergency has ended
At the time of this writing, Alberta is still in a state of emergency.
On May 19, 2020, under the Emergency Program Act, the BC government announced measures similar to Ontario and Alberta: the testator and witnesses must be “electronically present” before each other. One of the witnesses must be a lawyer or notary public, and the Will must include a statement that it was signed and witnessed with the use of electronic means.
People in BC still can’t use e-signatures to sign Wills.
Unlike Alberta, the regulation remains in place only until the last day of the current state of emergency. At the time of this writing, BC had extended its state of emergency to March 24, 2021.
But hold up—do I even need a Will?
Estate planning is becoming much more accessible and will become even more so if the COVID-19 signature and virtual witnessing amendments are made permanent.
But you may be wondering if you even need a Last Will and Testament in the first place. You may think you’re too young to need a Will, or that you don’t have enough assets to justify getting one.
The answer is that you probably do need a Will.
Here are some common milestones that signal the need for a Will:
You’re married or in a common-law relationship
You have children
You have pets
You own property
Your net worth is climbing
Do I need a lawyer to prepare my Will?
No, you don’t need a lawyer to prepare your Will if it’s going to be simple and straightforward.
If you know your Will is going to be complicated because you have complicated family dynamics or you fit into the high-net-worth category, then you’ll probably want to seek legal advice.
In some provinces, if you wanted to benefit from the remote witnessing rules you would need a lawyer to be one of the witnesses. But outside of these measures, you normally don’t need a lawyer to sign your Will.
How do I change my Will?
If you are looking to make some changes to your Will, you have a couple of options depending on who drafted your Will and when. If your Will was recently drafted by a lawyer and you are looking to make a minor change, the lawyer might suggest that you create a codicil. A codicil is a document attached to your original Will that describes all the changes you’d like to make.
When you draft your codicil, it needs to meet the same requirements as a Will. That means you’ll need to draft it and have it signed by two witnesses, one of whom is a lawyer––but you don’t need to use the same witnesses as your previous Will. If COVID-19 amendments are still in place, you’ll be able to have your codicil witnessed virtually.
Your codicil will refer to all previous versions of your Will when clarifying each amendment.
If you created your Will with an online service, you won’t be making a codicil. You will be making a new Will that, when printed and signed, will replace your old Will.
Here are some signs you should update your Will:
You get married or divorced
You enter into a new common-law partnership
You buy new property
You have kids
You start a business
You come into a large sum of money
You want to switch your executor
You want to add or subtract any beneficiaries
Your spouse dies
While the law may be slow to catch up with technology, innovation is happening within estate planning. The jury is out on whether or not COVID-19 amendments to virtual witnessing and signatures will remain permanent, but we find ourselves asking: Will we really be required to print and sign Wills and Powers of Attorney in five years? Ten years? We’d be surprised if it were true.