On August 14, 2020, Bill 21: Wills, Estates and Succession Amendment Act, 2020 (“Bill 21”) received Royal Assent. Bill 21 currently permits a will-maker and witnesses to the will to be electronically present rather than physically present when the will is signed. Bill 21 will also permit the making of electronic wills, the use of electronic signatures, and additional methods of altering and revoking electronic wills when these provisions are brought into force by regulation of the Lieutenant Governor in Council.
Section 37 (1) (a) of the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) requires that a will be in writing. Bill 21 will permit this writing requirement to be satisfied if the will is in electronic form, which means a form that:
- is recorded or stored electronically;
- can be read by a person, and
- is capable of being reproduced in a visible form.
This amendment has not yet come into force.
Sections 37 (1) (b) and (c) of WESA requires that a will be signed at its end by the will-maker in the presence of two witnesses, and signed by two witnesses in the presence of the will-maker and each other. Bill 21 will permit this signature requirement to be satisfied by an electronic signature if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.
The electronic signature should always be at the end of the will because section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.
This amendment has not yet come into force.
Bill 21 adds section 35.2 to WESA, which provides that a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's “electronic presence”. This means the requirements in sections 37 (1) (b) and (c) of WESA that the will-maker and two witnesses sign in the presence of each other is satisfied where the parties are in each other’s electronic presence. Electronic presence means “the circumstances in which 2 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 the parties are electronically present, Bill 21 also permits the parties to sign the will in counterpart.
This amendment is now in force retroactive to March 18, 2020.
Ministerial Order 161/2020 (the “Order”), which has allowed the electronic witnessing of wills since March 18, 2020, contains a similar definition of electronic presence and similarly permits wills to be signed in counterpart. The Order also contains two additional requirements that do not appear in Bill 21: that one of the witnesses be a lawyer or notary public, and that such a will include a statement that it was signed and witnessed in accordance with the Order. With the passage of Bill 21, a will made on or after March 18, 2020 that complies with section 35.2 of WESA may be valid, whether or not it purports to have been made under the Order. Bill 21 will repeal the Order when section 12 comes into force by regulation.
Altering and revoking electronic wills
Section 54 of WESA, which describes how to alter a will, does not apply to an electronic will. Rather, a will-maker seeking to alter an electronic will must make a new will in accordance with section 37.
Additionally, all or part of an electronic will may be revoked in various ways, including:
- deleting one or more electronic versions of the will with the intention of revoking it;
- burning, tearing or destroying all or part of a paper copy of the will, in the presence of a witness, with the intention of revoking all or part of the will;
- by another will made by the will-maker in accordance with WESA; and
- by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37, which may be in electronic form and signed with an electronic signature.
These amendments will come into force by regulation.
For further information on these changes please contact the authors or any member of our Wills, Estates and Trusts group.
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