Still More on Electronic Wills

Here are some further thoughts on how Canada might authorize electronic wills. Perhaps the Uniform Law Conference of Canada could use them in the mix of policy proposals when and if it takes up the topic, as it is almost bound to do sooner or later – as companion jurisdictions move towards law reform.

Speaking of those jurisdictions:

• In July, 2018, the Uniform Law Commission in the US gave first reading to its Uniform Electronic Wills Act. No further draft has been released to follow up on the discussion. The developments in that project so far are online at the Commission’s website.

• The Law Commission of England and Wales wrapped up the consultation phase of its e-wills project last November, and remains in its policy development stage.

The content of both of these projects has been analysed in my two previous notes this year, in January and in July.

Suppose the ULCC decided to be forthright and simply remove the legal barriers to electronic wills, as it removed the barriers to most electronic transactions in the Uniform Electronic Commerce Act (UECA) nearly 20 years ago.

The easiest way to do that would be to repeal the provision of the UECA that excludes it application to wills and codicils to wills (paragraph 2(3)(a)). Then the writing provision (s. 7) and the signature provision (s.10) would apply to wills.

One would have to review the special legislation about wills – often the Wills Act, in Ontario the Succession Law Reform Act – to see if it constituted a specific prohibition on the use of electronic documents or otherwise regulated such documents, since the UECA yields to such a prohibition or regulation (s. 2(5) and (7)). Nothing in the language of that legislation is any stronger than any other writing or signature provision, except as described below.

So if the UECA applied to wills, it would be effective to authorize electronic wills without further ado.

If that amendment were made, then one would not need to have recourse to the dispensing power under the Uniform Wills Act (or of course similar provincial legislation, as discussed in my prior notes) to validate an e-will, since the UECA will do that directly and the wills legislation, to the extent that it requires writing or signature, will be covered.

The key principle becomes functional equivalence – the e-will is the functional equivalent of the one authorized by wills or succession legislation. The provisions of the UECA on writing and signatures can be allowed to operate as is. The definition of e-signature is electronic information put in the document with intent to sign – but that intent will be clear in just about every case.

The method by which witnesses can sign the same document as the testator is a matter for proof, not for statute. Would we have to provide any greater legislative assurance of authenticity than we do for the usual run of commercial documents? Or will the witnesses’ signatures give sufficient assurance, as they do for a paper will?

Is the need for two witnesses present at the same time a provision that demonstrates a legislative intention not to have this done electronically, within the meaning of UECA s. 2(5)? I would have thought not.

My early impression is that the ULCC need not attempt to follow the ULC in providing for remote execution by witnesses. Both would still have to be present in person when the testator signs. Is this right? Should we follow the Americans in describing “virtual presence”, where the parties are considered present and able to sign the same document if they are connected electronically in a way that they can all hear – and even see, if necessary – each of the others at all material times? This would be a bit like the statutes on electronic meetings, which are allowed if everyone can hear and address everyone else in attendance. Why not for wills?

On a separate point, the Law Commission had speculated that undue influence was a particular risk for wills, or perhaps for electronic wills. It contemplated – no recommendation has yet been issued – that substantial bequests that appeared suspect, in that they benefitted people in close non-blood relationships with the testator, would be valid only if the will contained language justifying the bequests.

Does this seem like a good idea, or unduly cautious, given the number of instances in which such bequests are challenged? Is there any more risk of such bequests in an electronic will than in a traditional one? Would e-wills be more likely to be made without legal advice, and if so, does that justify more stringent form or content rules than apply to their paper equivalents?

In short, are we getting to the stage where e-documents and e-communications are so taken for granted – or taken for safe – that even wills can fall into the general framework for functional equivalence to paper, so that law reform becomes easy?

Are we there yet?

Addendum: If we are there for wills, presumably we are also there for the electronic designation of beneficiaries. Possibly we are there for the latter even if we are still hesitant about the former.

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