Where There’s an E-Will, There’s an E-Way: Getting Started with Electronic Wills in B.C.

8 min read

Here’s how your firm can capitalize on British Columbia’s new electronic will law.

If hardcopy documents have been hamstringing your law firm or estate management practice, you’re in luck. Electronic wills (e-wills) are now legal in B.C. thanks to the implementation of British Columbia’s Bill 21, which amended the Wills, Estates and Succession Act to permit electronic signatures when preparing and filing wills. As of December 1, 2021, British Columbia became the first – and thus far only – Canadian province to recognize electronic wills with the same legal force and authority as wills created through conventional means. 

In addition to digital signat​​ures, the amendment also permits electronic methods of witnessing and storing wills – which means the entire process of creating and executing a will in British Columbia can now be achieved in a 100% paperless way.

Electronic wills offer considerable advantages for lawyers and estate planners. Beyond simply providing more convenience for clients, e-wills enable faster document creation, make it easier to catch errors, and help to create a more streamlined client experience. Here are some of the ways electronic wills can benefit your practice – and some tips for getting started with e-wills.

E-Will Protocols: What the New Law Allows

While the Wills, Estates, and Succession Act previously permitted courts to declare e-wills to be valid if appropriate in the circumstances, the new law goes a step further to recognize e-wills as valid by default.

The new law permits wills to be signed in the “electronic presence” of witnesses and testators. Both electronic and paper wills can be signed with the witnesses and testators participating in a videoconferencing call; in the case of paper wills, this would mean the will would be signed in two counterparts.

The electronic tools now permitted also include a variety of accessibility technologies for those with hearing or vision impairments. This is an important change that could allow clients with such accessibility challenges to more fully participate in the will and estate process.

The new law also permits wills to be signed with electronic signature solutions like Adobe Sign and DocuSign, enabling the process to be completely paperless. According to the B.C. Notary Association, the new law applies retroactively to wills signed on or after March 18, 2020, the day the B.C. Government declared a provincial state of emergency due to the COVID-19 pandemic.

There are still certain technical requirements the law imposes though. According to the law, an e-will “(a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of being reproduced in a visible form.” Furthermore, those who are providing the record are obligated to ensure that recipients also have access to a record of the e-will. An e-will is not valid if the recorder interferes with the recipient’s ability to copy, store, or record it. 

Importantly, the law does not require the testator, executor, witnesses, or any other parties to maintain a paper copy of the will. The electronic document itself is the original will, and paper printouts are copies derived from it.

The Counterparts Issue: Reconciling Multiple Electronic Copies

Traditionally, the law surrounding the creation of wills has involved the concept of an original document. Before the updated law came into effect, standard advice from organizations like the Access Pro Bono Society of British Columbia was to only formally execute the original will rather than copies of it. Paper copies of traditional wills are not legally binding, which has a number of implications for clients. 

If the original paper document can’t be found, courts assume the testator has invalidated the will by destroying it. Thus, the probate process and court adjudications become much more complicated when only a copy of a will exists. Clients who are seeking to enforce a will using only a paper copy bear the burden of proving that the copy is still legally binding. If the will cannot be proven to be valid, then the court must appoint an estate administrator, who may or may not honour the directives of the deceased.

E-wills are a convenient way to resolve these problems. Under the new British Columbia law, the only way to modify an electronic will is to delete it and create a new e-will. Furthermore, intentional deletion of an electronic will is considered a formal revocation of the will, as is issuing a written electronic declaration of revocation that is witnessed by at least two parties.

Of course, the easiest way to resolve questions around which “copy” of an e-will is the original is to only have one copy. Cloud-based records management solutions like Appara use a “single source of truth” methodology where one secure electronic document is maintained as the master document, available to all parties as needed. Secure sharing capabilities eliminate the need for copies or counterparts, and a central register of changes means the document is always up-to-date with the testator’s most recent wishes.

By maintaining wills in this manner, law firms can head off legal challenges regarding the validity of wills before they’re raised, enabling smoother and faster estate management and probate. 

Getting Started with E-Wills: Best Practices for B.C. Lawyers

Processing your first e-will can seem daunting, but with a few simple tools, your law firm or estate planning practice can offer clients faster and easier will creation, more convenient signing options, and bank-grade security.

The two core components your firm will need to start with e-wills are (1) a cloud-based document storage and signing solution, and (2) a videoconferencing app like Zoom. You’ll also want to take into consideration issues like data security and backups, to protect your clients’ documents in the event that you, or they, fall victim to a hacker, a computer virus, or a hardware failure.

Backing up client data onto an external hard drive is one option you can use to ensure they can still access their wills in the event of a computer failure. But unless they’re password-protected, external hard drives are still vulnerable to theft, which places your firm at risk of a data breach.

That’s why the better option is a cloud-based storage system built on bank-grade security and designed specifically for storing sensitive legal documents.

Beyond technology solutions, you’ll want to implement certain practices to create a seamless experience for clients and to ensure you’re meeting your legal obligations.

National law firm Bennett Jones recommends that lawyers and estate planners have clients produce photo ID on video calls, which can then be screenshot and saved for identification purposes. In order to avoid claims of undue influence, Bennett Jones recommends that lawyers and estate planners have clients move their cameras around to demonstrate that no other parties are in the room.

You’ll also want to use an online scheduling software, like ScheduleOnce or Calendly, to set up e-will signing appointments. E-will creation is contingent on all of the relevant parties coming together remotely at the same time to sign documents; clients may forget their appointments if they aren’t physically traveling to your office. Sending electronic invites through an online scheduler ensures that all parties have received notice of the signing appointment time.

Finally, take the time to ensure the testator has the required testamentary capacity. Will and estate lawyers know that proving testamentary capacity is a necessary part of forming a will, but assessing capacity may be more challenging when the will signing is taking place remotely. Ask the testator open-ended questions about what they believe will happen to their property at the time of their death, what types of property they are distributing through their will, and to whom the property shall be distributed.

If the beneficiaries or witnesses frequently try to interrupt or correct the testator, it could be a signal that the testator is not expressing their true wishes. You may wish to temporarily mute the other attendees, and turn off their cameras, while the testator is demonstrating capacity. This removes the opportunity for undue influence from others on the video call.

Making the Most of E-Wills with AI

Electronic wills offer several advantages for British Columbia lawyers. With e-wills now legally authoritative, attorneys and firms can take advantage of advanced technologies like artificial intelligence to draft e-wills in less time. While it is possible to create e-wills with standard word processing documents, this method is usually inefficient and slow, and requires a number of quality control checks along the way. Typical word processors require a significant amount of manual work on the part of the attorney to draft, manage, and track documents.

But now, emerging technologies like document automation and artificial intelligence can help law firms to automatically draft documents, collaborate with remote colleagues, and keep records of client intake forms and consultations in one place. 

Rather than relying on manually-drafted word processing documents, B.C. estate planners and lawyers can auto-generate mirror wills, living wills, trusts, and other estate documents in minutes – with precedent and alternate clauses baked in. Have your own precedents that you prefer to use? You can customize your precedents in your Appara account, or contact our support team and we can upload your precedents for you.

Streamlined visual reports can track transactions, giving your firm a more comprehensive overview of where in the process your documents are. Automation technology can handle executor and solicitor tasks for estate plans, which frees up more time for attorneys to take on new client matters.

Plus, with documents protected through industry-leading encryption and securely backed up in two independent Microsoft Azure data centers that undergo regular security testing, you can take advantage of the benefits of e-wills and still maintain your clients’ privacy.

If your law firm or estate planning practice is looking to get started with e-wills, remote storage and document automation can make the transition simpler and less time-consuming. 

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