B.C. lawyers still wary after a year of electronic wills

Almost a year after B.C. became the first Canadian jurisdiction to allow electronic wills, the province’s lawyers are still treading carefully on the issue.

Bill 21, which received royal assent in August 2020 and took effect in December 2021, put fully digital wills level with paper-based versions signed with wet ink. This means B.C. testators can sign and store their wills electronically, as long as they can be read by a person and “are capable of being reproduced in a visible form.”

Stephen Hsia, an estate planning lawyer with Miller Thomson LLP in Vancouver, always regarded electronic wills as the next step in the evolution of testamentary documents.

“I just did not expect B.C. to evolve so fast,” he said, adding there are still too many unknowns in the process to sway him from more traditional methods.

For example, while the provincial government encourages testators to save their wills as PDF files, the legislation was not prescriptive on format.

In addition, the new law requires testators wishing to revoke an electronic will to make a purposeful decision to delete it or print out a copy and destroy it in front of a witness. Alterations to an existing electronic will can only be made via the creation of a new document after the deletion of the original. If multiple versions exist, this could cause uncertainty over which one is valid, Hsia said.

“I’ve had a lot of lawyers and law reformers from other provinces approach me to ask for my thoughts,” he said. “But I can tell you the number of clients coming and asking me to make them an electronic will is zero.”

Hsia admitted that clients of a full-service national law firm like his may not represent the general population. “They want to do something in the tried-and-true way; they’re not interested in experimenting with their estate planning,” he said.

Arin Klug, a former estates lawyer who co-founded online will-making service Epilogue, said his firm has decided not to offer B.C. clients the option to sign their wills electronically, based in part on the skeptical reactions of the lawyers they partner with in the province.

“Our philosophy is to take a more cautious approach,” Klug said. “I think it will eventually become more commonplace and all firms will probably end up adopting it. Once the courts start looking at these wills and giving guidance, that’s when you’ll see lawyers getting more comfortable.”

But it could be some time before a judge gets a chance to weigh in on electronic wills. According to a statement from B.C.’s Attorney General and Ministry Responsible for Housing, the province is unaware of any court applications involving an electronic will.

“This is not unexpected,” the statement said. “It is anticipated that the majority of early uptake on electronic wills will be from a younger demographic, so we would not expect to see these electronic wills being probated for a number of years.”

The ministry added that it was prepared for hesitancy in the legal profession over electronic wills.

“Lawyers should continue to provide a service using whatever format they feel most comfortable with,” the statement said.

Into the breach have stepped online services such as Willful, which claimed the execution of Canada’s first electronic will just after midnight on Dec. 1 last year, the day the legislation took effect. Since then, co-founder and CEO Erin Bury said about 300 more B.C. customers have completed fully digital wills, using e-signature platform DocuSign to permanently mark documents created and stored as PDF files.

“The person who goes to Willful is not the same as someone who would shell out $1,500 to a lawyer,” Bury said. “We’re targeting the 54% of people in B.C. who don’t have a will, and trying to provide them with an affordable solution.”

She added: “B.C. was the first, but it shouldn’t be the last to adopt electronic wills. Ultimately, it’s a more secure process for people.”