Bill 21: Electronic wills in British Columbia

27 août 2020 | Alexander Swabuk

( Disponible en anglais seulement )

Following the surge of the COVID-19 Pandemic, the BC Legislature undertook a myriad of proactive measures to assist the general public. One such step from an estate planning perspective was the introduction of Bill 21: Wills Estates and Succession Amendment Act, 2020 (“Bill 21”).

Bill 21 was built upon the Minister of Public Safety and Solicitor General’s Ministerial Order 161/2020, issued on May 19, 2020, which permitted the electronic witnessing of wills while British Columbia was in a State of Emergency. Bill 21 proposed to expand the definition of a will, such that a will presented in “electronic form” would satisfy the requirement that a will must be in writing.

The underlying rationale for Bill 21 was that the proposed changes and modernization of the will making process would benefit British Columbians long after the State of Emergency ended who, for example, have a disability, are quarantined, live in rural or remote communities, or would have difficulty attending a lawyer’s or notary’s office due to child care or other responsibilities.

The proposed amendments responded to concerns raised by the public and the legal profession about a lack of flexibility in the rules regarding wills. They were also based on work completed by the Uniform Law Conference of Canada, which makes recommendations to harmonize and reform laws across the country.

On August 14, 2020, Bill 21 received Royal Assent and amended the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) making British Columbia the first Canadian Jurisdiction to formally recognize electronic wills.

Although not yet fully in force, as regulations need to be drafted that will take the new legislation into account and will give effect to it, Bill 21 will add the following sections to the WESA:

Electronic Form of Will – recognition of an “electronic” will, that: “(a) is recorded or stored electronically; (b) can be read by a person; and (c) is capable of being reproduced in a visible form”. [s. 35.1]

Electronic Presence – permission of wills to be made when the relevant persons are in each other’s “electronic presence”. Bill 21 defines “electronic presence” as “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.” [s. 35.2]

Electronic Signature – recognition of an “electronic signature”, which is defined as “information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record”. [s. 35.3]

British Columbia’s move to allowing electronic wills is a positive development, but brings with it new concerns and further considerations. If you have any questions, need advice or assistance regarding the effect of electronic wills, contact Miller Thomson’s estate litigation team.

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