Electronic Wills Down Under and Closer to Home

This column canvasses some recent developments in the law affecting electronic wills and reviews the Canadian position.

The forms an electronic will might take have been tested down under in recent years. Consider if the law anywhere in Canada would have, or should have, produced similar results.

Australia

In Yu, Re [2013] QSC 322, the High Court of Queensland gave probate to a will contained in the iPad of the deceased Mr. Yu, who had killed himself. The will was done up like a traditional will, i.e. with the heading ‘last will and testament’, and it contained many of the traditional provisions of a will, like the appointment of an executor and a replacement executor.

The court found that the will was a document within the meaning of the relevant law (having to refer to a couple of statutory sources to come to that – to me – obvious conclusion), that it was testamentary and intended to be legally effective. It was therefore given effect under Queensland’s power to dispense with full compliance with formalities. The application for probate was not contested.

More recently, in Re Nichol [2017] QSC 220, another judge of the Queensland court held that a will contained in an unsent text message on the phone of the deceased could be enforced. This case was disputed by the widow (separated just before the deceased’s suicide) and their son, who would have taken on an intestacy. The text message gave the assets to a couple of nephews named in the text who had not been very close to the deceased.

In this case the wording was much less traditional than in Yu. Here it is:

You and [nephew] keep all that I have house and superannuation, put my ashes in the back garden … [wife] will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin … My will”

The judge found that all the essential elements of a will were there, despite the form. Again, this fell within the provision allowing for dispensation with formalities. It was apparently not necessary to go through the Yu analysis of whether this was a document – which seems clear enough. What else could it be? That the text message had not been sent suggested to the court that the deceased had intended it to be found.

Queensland courts used to have a statutory ability to give effect to a document if it was in substantial compliance with the form rules in the Act. That was criticized as too restrictively applied. Its provision was amended in 2006 to use the language of dispensation with formalities rather than substantial compliance. The dispensation language was at the base of the two cases just described. The work of both the ULCC and the Law Commission preferring this approach is discussed in more detail below.

New South Wales courts have probated a will on a USB drive – supported by oral evidence – and a codicil on a DVD. All Australian states now have a dispensing power by statute.

New Zealand

Compare and contrast a New Zealand case where a scanned copy of a will was submitted for probate, the original having been destroyed by the deceased’s solicitor when it was thought probate would not be needed. When it turned out to be required, the solicitor submitted the scanned version, which the Registrar rejected because it was not an original. In the Estate of Clive Douglas Crawford (Deceased) [2014] NZHC 609.

While New Zealand has in principle implemented the UN Model Law on Electronic Commerce, it made two important changes.

The Model Law, article 8, says that where the law requires an original, that requirement can be met by the information in electronic form if it is accessible for subsequent reference (i.e. is the functional equivalent of a written document) and has reliable assurances of its integrity. Integrity means no change in the information since it was created. Reliability is judged according to the needs of the circumstances.

New Zealand’s Electronic Transactions Act, however, does not say that. It says, in section 32, that where the law requires that a document be compared with an original, that document may be compared with an electronic version of the paper original. As noted in the Crawford Estate decision, the Wills Act does not require comparison; it requires production of the original. The ETA was of no assistance.

Section 28 of the ETA does not appear to have been pleaded., or is at least not mentioned in the reasons for decision. It is more like the Model Law, with an important proviso. It says that where information on paper is to be provided, that information can be provided in electronic form if:

• that form reliably assures the maintenance of the integrity of the information [a provision clearly influenced by the Model Law on originals],
• the information is readily accessible so as to be usable for subsequent reference [again from the Model Law] AND [the proviso]
• the person to whom the information is to be presented consents to its being provided in electronic form.

The Model Law does not have a consent provision attached to that article, but it does expressly permit this kind of addition generally. In the Crawford Estate case, the Registrar was clearly not going to consent to an electronic version. Nor was the court about to compel that consent.

The judge gave the following policy reasons why the Wills Act required an original:

[12] There are sound reasons, which the Registrar refers to in his memorandum, for the requirement that the original document should be the subject of the application for grant of probate. Inspection of the signatures is important. The condition of the will itself is important. It can indicate, for example, whether there is a possibility that pages may have been removed or added, or that there may have been something attached to the will. These are just examples. There are other matters which can properly be checked only by reference to the original will. They require inspection of the original will by the Registrar in the process of examining and determining an application for grant

There was no discussion of why a properly made and maintained scanned version could not satisfy all those objectives.

The court was also dismissive of the capacities of e-documents generally, in terms that suggest that the legislature rather than the court will have to settle the question, if it is to be settled differently. Or perhaps an estate with a value worth appealing might open the path.

[17] … Preservation of the integrity of the original will is at the heart of probate practice. Its importance is such that technological developments have not reached a point where probate practice should be adapted to treat a copy of a will made by electronic means as the equivalent of the original will. It would be unwise to speculate whether technological developments will ever do so

England and Wales

Last summer on Slaw.ca, John O’Sullivan noted the project of the Law Commission of England and Wales on wills.

The Commission’s consultation report has a full chapter specifically on electronic wills. It is a good competent discussion. Select passages appear as an appendix to this column.

Here are the conclusions submitted for consultation (page 114). The consultation ended in early November 2017; the Commission has not yet reported on what it heard.

We provisionally propose that:

(1) an enabling power should be introduced that will allow electronically executed wills or fully electronic wills to be recognised as valid, to be enacted through secondary legislation;

(2) the enabling power should be neutral as to the form that electronically executed or fully electronic wills should take, allowing this to be decided at the time of the enactment of the secondary legislation; and

(3) such an enabling power should be exercised when a form of electronically executed will or fully electronic will, as the case may be, is available which provides sufficient protection for testators against the risks of fraud and undue influence.

The Law Commission also lists as one of the potential reforms “Introducing a power to dispense with the formalities for a will, to allow courts to recognise wills where the deceased’s testamentary intentions are clear.” The Commission expressly connects the potential dispensing power with the making of electronic wills (pp 99 – 100). It concluded that the dispensing power should extend to electronic wills. See the appendix for that discussion as well.

United States

The Uniform Law Commission has just launched a Drafting Committee on Electronic Wills. Its first meeting was in October 2017, where it considered this issues memo. The supporting materials include three judicial decisions from state courts upholding a will made on a tablet, signed by the testator and then by witnesses, and a will made and signed with a computer-generated signature, but refusing to recognize a will made with Legal Zoom software.

Canada

In the comments to Mr. O’Sullivan’s note, I referred to the work of the Uniform Law Conference of Canada on that topic about fifteen years ago, and the recent adoption of a Uniform Wills Act. The ULCC followed the Alberta Law Reform Institute’s recommendation that specific rules on electronic wills were not needed. However, courts should have a dispensing power that would admit to probate wills that clearly stated the wishes of the testator. Some wills benefitting from such a rule would be electronic. Specific language to do so was adopted by the ULCC in 2002 (though then using the term “substantial compliance”).

The Uniform Wills Act, as further revised in 2014, now says this:

Validation power for non-compliant wills

10 Where, on application, the Court is satisfied on clear and convincing evidence that a written document embodies the testamentary intention of a deceased individual, the Court may order that the written document is fully effective as the will of the deceased individual, despite that the document was not made in accordance with section 3(1)(b) or (c) or 6 or is in an electronic form.

Several provinces have a ‘dispensing power’ now or a process for validating wills in ‘substantial compliance’ with the usual form rules. Ontario does not. There is one Quebec case that found – back in 1996 – that that power in Quebec law applied to a will in electronic form. Rioux v. Coulombe (1996), 19 E.T.R. (2d) 201 (Qc. Sup. Ct.).

In addition, several law reform bodies have followed the ULCC in recommending that electronic wills be expressly dealt with under the dispensing power. The Saskatchewan Law Reform Commission so recommended in 2004 (at p 33), the B.C. Law Institute in 2006 (pp 29 -33), and the Alberta Law Reform Institute (revisiting its earlier study) in 2009 (pp 43 – 54, recommendation at 53).

B.C. legislated in this sense in s. 58 of its Wills, Estates and Succession Act, S.B.C.2009 c.13. Saskatchewan has not amended its Wills Act since its Commission reported.

Alberta’s Wills and Succession Act, S.A. 2010 c.W-12.2, despite its recent enactment, does not do so expressly. Section 37 on dispensing powers applies only to a ‘writing’. and unlike the Uniform Act (which had not been adopted in its current form when the Alberta Act as passed), it does not have an “including in electronic form” clause.

Alberta’s Electronic Transactions Act, like most provincial legislation based on the Uniform Electronic Commerce Act, excludes wills and codicils (section 7). It, and the other provinces’ statutes, do not prohibit electronic wills, they just do not enable them.

However, Alberta’s Interpretation Act s. 28, says this:

“writing”, “written” or any similar term includes words represented or reproduced by any mode of representing or reproducing words in visible form.

Traditional interpretation statutes have given some examples of words in visible form, like engraving, that suggested the use of paper. In the absence of such words, there seems to be no reason to limit this provision to words on paper.

The principle of the Uniform Electronic Commerce Act, and of the UN Model Law on Electronic Commerce on which it is based, is that electronic documents are not writing, for a number of reasons. (See the Guide to Enactment of the Model Law, paragraph 17.) They therefore provide for functional equivalents of writing (and signature, and original) to take the place of writing when electronic communications are used.

It is beyond the scope of this article to speculate whether an Interpretation Act provision like Alberta’s undermines the purpose and functioning of the electronic transactions statute. It is arguable that times have changed, and that one can now proceed by definition rather than by functional equivalence. In Ontario, when the Legislation Act, 2006 replaced its Interpretation Act, the new statute dropped the definition of “writing”, to avoid the discussion. The United Nations still uses functional equivalence, though, as recently as its Model Law on Electronic Transferable Records, adopted in 2017.

The Uniform Wills Act provision quoted above would operate in most provinces in conjunction with an electronic transaction statute based on the Uniform Electronic Commerce Act. The UECA also says that it does not prevent the operation of any statute that expressly authorizes the use of electronic documents. It is arguable that the final clause of s. 10 of the Uniform Wills Act does just that – otherwise what meaning could it have, except that an electronic will itself can be a writing?

That said, it would seem prudent for a jurisdiction that adopted the Uniform Wills Act to amend its electronic commerce/transactions statute about its applicability to wills, just to avoid this debate.

A recent comparative comment was published by the BCLI on this topic dealing with BC, ULCC and English and Welsh Law Commission thoughts.

Conclusion

One understands the need for caution in deciding whether a will is valid, given the importance of the consequences and the unavailability of the person who knew best what was intended. That said, both Australian cases seem to have come out to a justifiable result. One solicitor’s comment was that testators should not rely on such results; they should make a proper will in due form! A considerable amount of evidence had been required to support the wills, especially in Nichol, and that evidence was not necessarily available in all cases.

There seems to be little reason why a scanned document should not be given effect as well, though some questions of proof of reliability could arise. One would have to be able to demonstrate the steps taken to produce and preserve a version whose integrity can be trusted.

It is probably time for Canadian jurisdictions without a dispensing power in their wills statutes to add one – not only for our avid users of tablets and smart phones, but for them too. Scanners should proceed with caution.

Question: in the light of all the current activity on e-wills, should the Uniform Law Conference of Canada launch its own project on the general question? Its motives might be to keep up with our legal neighbours or to ensure that Canadian perspectives influence our law, rather than our being urged in a couple of years to adopt whatever the UK or the US come up with.

Postscript

It may also be time for legislation where it is still lacking on the other current issue on electronic expression of testamentary intention, namely the designation of beneficiaries under deferred payment arrangements such as pension plans, RRSPs and TFSAs. The matter is discussed on Slaw here.

Appendix

Here are essential passages of the consultation paper on Wills by the Law Commission of England and Wales, referenced earlier in this column (footnotes omitted):

6.7 In our view, electronic wills can only be effectively introduced using specially designed legal rules. In what follows we explore the benefits of electronic wills, explain why the current formality rules stand in the way of such wills and examine several methods of electronically authenticating documents.

6.8 While we are optimistic about the prospect of electronic wills, law reform in this area is not straightforward. Other law reform bodies have considered electronic wills and legislation geared towards introducing electronic wills has been proposed in several US states. However, we are not aware of any major jurisdiction that has successfully introduced electronic wills. While Nevada (USA) introduced an electronic wills statute in 2001, the statute’s technological requirements have proved so difficult to satisfy that no current technology can meet the prescribed standards. The experience of other jurisdictions and our assessment of various methods of electronic authentication inform our provisional proposal of an enabling power to pave the way for the introduction of electronic wills.

…

6.12 Electronic wills offer potentially significant gains in convenience. Some commentators have suggested that electronic wills could be easier to amend after they have been signed. Consequently, it would be simple for testators to keep their wills up to date. Commentators and stakeholders also suggest that electronic wills will be easier for testators to store than paper documents, offering increased security and prevention of accidental destruction. Electronic wills may also be easier for executors to find on the death of the testator.

6.13 The greatest gains, not just for individual testators but also the probate system as a whole, could be offered by a system that linked up fully electronic wills with the probate service. It is possible to imagine a situation in which an electronic will could be created and executed online, electronically checked to ensure that it complies with the formality rules (at least, on its face), and then stored ready to be submitted for probate in electronic form automatically and efficiently on the testator’s death.

…

6.31 It will be apparent that the key issue for electronic wills is authentication: whether an electronic signature could and should be accepted as a signature for the purposes of executing a will. Nevertheless, it is also important to consider the current witnessing requirement with regard to electronic wills.

6.32 For a will to be valid, the testator must sign or acknowledge his or her signature in the presence of both witnesses and the witnesses must sign or acknowledge their signatures in the presence of the testator. Whether the parties are in each other’s presence is currently decided with reference to whether they are in the same room and whether there is a line of sight. That rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online videoconference (there has been no such case). However, it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because “presence” has been held to involve physical presence.

6.34 Our starting point has been to recognise that, while the status of electronic wills is currently uncertain, it is highly likely that their use will become commonplace in the future. … We have focussed on electronic signatures and identified three core issues.

6.35 First, and most importantly, electronic signatures must be secure. Electronic signatures must provide strong evidence that a testator meant formally to endorse the relevant document; electronic signatures must reliably link a signed will to the person who is purported to have signed it. Handwritten signatures perform this function well. They are distinctive marks, made directly by the testator, amenable to detailed forensic analysis. Consequently, we have proceeded on the basis that electronic signatures should be no less secure than handwritten signatures. Since the level of security offered by different electronic signatures varies, it is essential that a legal mechanism exists for determining which electronic signatures are sufficiently secure, and which are not. For this reason, we have concluded that electronic wills must be subject to specific legal rules.

6.36 Secondly, the infrastructure required to support electronic will-making must be viable, both technologically and commercially. There is a risk that narrowly specifying types of valid electronic will could be counterproductive. Tightly specifying the necessary technical requirements may have the effect of preventing the adoption of electronic wills rather than enabling their adoption. This appears to be a problem in Nevada, the only jurisdiction we are aware of having legislated to introduce electronic wills ….

6.37 Considering the numerous potential ways in which electronic wills could be made, we are cautious of proposing overly specific primary legislation. We believe that any recommendations that we ultimately make should not unduly limit either the technology that is used in electronic will-making, or the commercial incentives to create a secure will-making system. These considerations suggest the need for a degree of flexibility in the law.

6.38 Thirdly, we believe that there should be a degree of consistency across platforms for electronic will-making. There are myriad possible methods for executing and storing a will electronically and a free-for-all as to permissible methods might create uncertainty as to what constitutes a valid electronic will, thereby dissuading testators from using electronic means. Furthermore, a clear and consistent definition of what constitutes an electronic will would protect testators from using methods that might not be upheld after death. Like the concerns about security of electronic wills, concerns about consistency suggest a need for electronic wills to be regulated.

6.39 The issues of security, viable infrastructure, and consistent implementation all indicate that a balance needs to be struck between regulating electronic wills and allowing enough flexibility in the law for electronic wills to develop.

…

6.41 While we have focussed on electronic signatures, the witnessing requirements will also be an important part of the formality rules. If electronic wills are introduced, the rules governing “presence” will have to be revisited. At a minimum, there will be a need to make clear whether witnesses have to be physically present or whether some sort of online presence (for example, videoconferencing) will suffice.

…

On dispensing powers and electronic wills, the Commission said this:

5.95 Our tentative initial view is that the scope of any dispensing provision in English law should be drawn widely. Were a dispensing power to be introduced, there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording. Those records are all potentially strong evidence of the testator’s intentions and, as we have seen, upholding the testator’s intentions is the strongest argument for introducing a dispensing power.

5.96 That said, we note that the potential recognition of electronic wills via a dispensing power is a double-edged sword. On the one hand, it seems essential that the power be applicable to electronic documents. Testators who do not follow the formality rules – either through ignorance of them or necessity – are increasingly likely to use electronic means. For example, a person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write. On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives. They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power. In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious. While there are arguments on both sides, we take the view that, on balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power.

5.97 It might also be thought that there is also a risk that the potential recognition of electronic wills could supersede a proposal that we make elsewhere in this Consultation Paper. In the chapter on electronic wills we provisionally propose that an enabling power should be introduced that will allow electronic wills to be recognised in the future. This would allow the Government to bring forward secondary legislation to enable the use of electronic wills at a time when it is feasible to do so. At first blush, it may seem that a dispensing power would make the enabling power ineffective. However, the function of the enabling power is to allow electronic will-making as a matter of course when the time is right. The function of the dispensing power is to recognise informal wills (possibly electronic) retrospectively on a case by case basis.