Much of the legal profession and general public do not realize that the age of electronic/digital wills is already upon us as per WESA.
Section 58 (1) WESA reads as follows:
In this section, “record” includes data that:
1) is recorded or stored electronically,
2) can be read by a person, and
3) is capable of reproduction in a visible form.
The term “record” explicitly anticipates that a document in electronic form may become a valid testamentary document.
This definition may even be broad enough to include audio or audiovisual recordings that can be stored electronically and can be reproduced in visual form in the likes of a transcript. The definition of record may well involve many forms of permanent media.
BRITISH COLUMBIA LAW
The case that goes the furthest in curing a testamentary document that was in electronic form is Hubschi Estate 2019 BCSC 2040.
A terse message found on the deceased’s computer was “cured” under S. 58 WESA and found to be a valid will.
Specifically, the court found that the electronic Microsoft Word document found in the deceased’s password–protected personal computer after his death was the last will of Mr. Hubschi.
The court application was unopposed but the Judge thoroughly reviewed the law under S.58 WESA.
The computer message was found on the deceased’s computer labelled “Budget for 2017” and read as follows:
“Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”
As the document was “cured” by the court pursuant to S. 58 WESA, the deceased’s assets were to be distributed to the foster siblings who he grew up with in accordance with the intention set out in the document.
Had the document not been “cured”, the deceased would have died intestate, and his assets would have been distributed to blood relatives in Switzerland with whom he had no relationship, in accordance with S. 23 WESA.
The deceased was given up at birth and at age 3 was placed in a foster home in which he grew up with the five siblings to whom the court divided his estate equally.
He died without any children, nor did he marry.
The court strongly implied that closeness of the beneficiaries will be a factor to be considered as the court is very cognizant the deceased’s estate would have gone to relatives he had no relationship with as opposed to his foster siblings with whom he had a close relationship until his death. An intestacy would have clearly NOT reflected the deceased’s final wishes.
The court also founded particularly significant that the deceased had reviewed the “Budget for 2017” the day of his death, and he modified it that same day. This supported the inference that the document reflected the deceased’s wishes as of the date of his death, and demonstrated a fixed intention, even though the words ”get a will done at some point” on the face of it suggested a lack of a fixed and final intention.
S. 58 WESA
Section 58 of WESA allows the court to make an order that a “record, document or writing or marking on a will or document” represents the testamentary intentions of the deceased person, even though the making of the will does not comply with WESA.
The court may, as the circumstances require, order that a record or document or writing or marking on a will to be fully effective as though it had been made as part of the deceased’s will.
The court needs to be satisfied on the balance of probabilities that the record represents the full and final testamentary intentions of the deceased and can be saved by section 58. WESA.
The BC courts, firstly in Young Estate 2015 BCSC 182 adopted the Manitoba Court of Appeal decision George v Daily (1997) 143 DLR (4th) 273.
In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.
The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
The court in Hubschi extensively quoted the B.C. Court of Appeal decision in Hadley Estate, Re 2017 BCCA 311.
Under section 58 WESA there is no minimum level of execution or other formality for a testamentary document to be found fully effective (Hadley Estate at paragraph 35). If the court grants an order under section 58(3) a document may be admitted to probate, regardless of its form.
The party seeking an order under section 58(3) must demonstrate on the balance of probabilities that:
1) The testamentary document is authentic;
2) The testamentary document contains the full, final and fixed intention of the will maker
The case law has established that the testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.
The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.
A very wide range of factors may be relevant to establishing its existence in a particular case.
AMENDMENTS TO WESA SUMMER 2020
Under Covid-19 amendments passed in British Columbia in the summer of 2020, an electronic will is conclusively deemed to be signed if the electronic signature is in, attached to, or associated with the will so that it is apparent the will maker intended to give effect to the entire will.
The amendments also give directions on how to alter or revoke an electronic will.
An electronic will is revoked only in one or more of the following circumstances:
1) by the will maker, or a person in the presence of the will maker and by the will maker’s direction, the deleting of one or more electronic versions of the will or of part of the will with the intention of revoking it;
2) by the will maker, or a person in the presence of the will maker and by the will maker’s direction, burning, tearing or destroying all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will;
3) by any other act of the will maker, or another person in the presence of the will maker and by the will maker’s direction, if the court determines under section 58 (relating to curing deficiencies) that
• the consequences of the act of the will maker or the other person is apparent; and
• the act was done with the intent of the will maker to revoke the will, in whole or in part.
A written declaration made in accordance with Section 55 may be in electronic form and signed with an electronic signature.
A deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.
Hubschi referred to two Australian cases that the court found informative, though not binding:
1) Nichol v Nichol & Anor (2017) QSC 220 where an Australian court held that a will contained in an unsent text message on the phone of the deceased could be enforced. The case was disputed by the widow who had separated from the deceased just before the deceased’s suicide, and their son, who would have taken on an intestacy.
The text message gave the assets to several nephews named in the text, who had been very close to the deceased.
The text stated:
“ 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 okay gone back to her ex at D9 beaten AGAIN bit of cash behind TV in a bid in the bank cash card pin— my will.”
The judge found that all the essential elements of the will were there, despite the form.
The text message had not been sent, and this suggested to the court that the deceased had intended it to be found.
2) In Yazbek v Yazbek (2012) NSWSC 594 the Supreme Court of New South Wales addressed the acceptance of a Microsoft document ”Will.doc” found on the deceased’s laptop after his death.
The computer record of the deceased’s intentions was accepted as his will based on surrounding circumstances, including his distribution of substantial assets. The testator wrote the document in terms indicating he would not be alive at the time the document was read. The testator had recently opened the computer, which suggested an inference that he had reviewed the will and was prepared to leave those terms in place.
A third Australian decision, Re Yu (2013) Q SC 322, the High Court of Queensland gave probate to a will contained in the iPad of the deceased, who had killed himself. The will was prepared like a traditional will ie. 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 replacement executor.
The court found that the will was a document that was testamentary and was intended to be legally effective. The application was not contested.
While incredibly convenient to the public, the growing use of electronic wills should expose some problems and obstacles that will be encountered, such as not having the password to computers, the encryption of documents, and general lack of knowledge on the part of executors to be increasingly vigilant for possible digital/electronic wills that might be stored on phones, tablets or computers.
From an estate litigator’s point of view a key issue for electronic wills will be the wills authentication and whether an electronic signature could and should be accepted as a signature for the purposes of executing a will.
This area of law seems fraught with potential problems for disappointed beneficiaries who might allege lack of capacity and undue influence, as there will typically not be the same probing for same by an attending lawyer or notary. For young families with fewer assets, creating an “e-will” might be cheaper, more convenient and better than no will at all, however for older clients with greater net worth and who are, generally speaking, more susceptible to financial abuse and undue influence, or may lack capacity, an “e-will” may not be a good idea.