B.C. Approves E-Signature to Sign a Will (Bill 21)
Digitally executed wills a first for Canada in fall of 2021
The Legislative Assembly of British Columbia passed Bill 21, amending the Wills, Estates and Succession Amendment Act permitting a will-maker and witnesses to the will to be electronically present (rather than physically present) to sign a will – a first for Canada.
Ironically, 84% of Canadians already think you can sign a will electronically, according to this Angus Reid survey. It’s the law that has had to catch up. Social distancing measures brought about by COVID-19, plus strong encouragement from innovators in the legal space and digitally-savvy consumers, helped accelerate policy change to support the new virtual, digital practices.
The Law Society of British Columbia recently launched an Innovation Sandbox which aims to improve access to justice by supporting innovative legal services. One of the first projects accepted to the sandbox is digitally-executed wills via Willful, which will be using DocuSign to demonstrate the security and simplicity of electronic signatures for wills.
Willful, a company that facilitates online will-writing, is rejoicing. They, too, have been vocal advocates for e-signatures and remote witnessing for wills. The average will is a 10–15 page affair, depending on a person’s assets and the complexity of their holdings. Right now in every province across Canada it is required by law to print the will, physically sign it, and round up two witnesses in the same room at the same time to sign. This paper-based process has kept too many from completing the task, especially as COVID-19 has meant reduced access to printers at home.
In Ontario, and in other provinces including BC and Alberta, COVID emergency measures made accommodations for witnesses to sign a will virtually (using audio-visual technology), but if the will-maker is choosing to virtually witness the will, a lawyer is required to be one of the two witnesses. This is only the case for wills that are virtually witnessed, not signed on paper, which is prohibitive to anyone who used a will kit or platform like Willful to create their will.
Witness signing can happen over videoconference, but every party must sign a physical copy of the paper document: the testator (the will creator), the lawyer, and the second witness. It’s challenging, and can be costly, to get everyone in the room at once. And it’s not an eco-friendly practice to make each signer retain a paper copy of the full document.
Do you have a will?
In Canada today, 57% of adults do not have a will, a statistic Willful is working hard to change. In Ontario, despite more people thinking about end-of-life preparedness, 62% still do not have a will. When someone passes away with a will, it takes a minimum of between 12–18 months to settle an estate – without a will in place, that process can take much longer. One in four Canadians say they would have gotten to it if they could have done it completely online.
Newly lawful digital options are now paving the way for B.C. residents. Electronic signatures make signing a will even more secure than demanding in-person pen and ink signatures. A full audit trail captures and encrypts verified signer information like identity, IP address, date and time stamps – and provides failsafes to prevent tampering of the document between signatures when multiple signers are involved. The digitized audit trail, which is considered part of the complete document, is admissible in court here in Canada and in a number of other countries. This is compared to the current process which requires physical signatures on paper that have no security measures or audit trails. Digitally executed wills also reduce the chance of lost or damaged wills, since it’s often difficult for family members to track down the paper copy.
Bill 21 is expected to come into effect in the fall of 2021. Working to modernize the rest of Canada’s provincial wills and estate laws to follow B.C.’s lead, Willful co-founder, Kevin Oulds, has polled Canadians across the country to gauge adoption of a fully digitized will service. “More than 85% of respondents cited convenience as their biggest motivator and were willing to pay for it,” said Oulds. Also of note in the survey, he added, was the brand trust that DocuSign brings to the equation for privacy, security, and ease of execution.