Proposals on electronic wills aim to bring certainty, accessibility to the law: Alberta institute

By Ian Burns

Law360 Canada (November 1, 2023, 12:26 PM EDT) -- A legal reform institute is calling for Alberta to allow for the creation of electronic wills, saying it would not only increase certainty for the public on estate planning but also help with access to justice.

For centuries, wills have been written on paper, signed with a handwritten signature, and, depending on the type of will, required the physical presence of two witnesses. But Alberta’s Wills and Succession Act (WSA) does not address electronic wills, meaning it neither permits nor prohibits making a will using electronic means.

And according to the Alberta Law Reform Institute (ALRI), this leads to a lack of clarity for lawyers, estate professionals and the public — for example, it is unclear whether the requirements for “writing” and “signature” can be accomplished electronically.

Katherine MacKenzie, Alberta Law Reform Institute

Katherine MacKenzie, Alberta Law Reform Institute

To deal with this uncertainty, the institute says a clear legislative framework for electronic wills should be established in Alberta. ALRI counsel Katherine MacKenzie noted the province amended the WSA during the COVID-19 pandemic, but those changes are temporary and set to expire in August 2024.

“We want to make sure that we’re giving people as many tools in their toolkit as possible in order to make an appropriate estate plan,” she said. “We did a survey, and we found that many people living in Alberta did not currently have a will and that many of them indicated that if there were electronic processes available for them, they would consider making one. So, we feel this would be a great way to encourage testation in Alberta.”

As a result, ALRI is recommending that electronic wills should be expressly permitted in Alberta. In particular, ALRI recommends that the Uniform Law Conference of Canada (ULCC)’s electronic wills amendments to its Uniform Wills Act should be implemented, with some changes.

The ALRI says its recommendations “aim to bring certainty, predictability and accessibility to the law, while embracing technological advancements and maintaining the integrity and security of the testamentary process.” In particular, the institute says a will must be readable as electronic text, signed by the testator with an electronic signature and signed by two witnesses, who are both present at the same time, using an electronic signature.

One of the considerations ALRI took into account while developing its recommendations was the concept of access to justice, MacKenzie said.

“And access to justice doesn’t necessarily have to mean access to a lawyer or access to court — it could just mean appropriate access to legal services,” she said. “If we can introduce electronic options like remote witnessing and creation of an electronic will, that helps reduce transportation costs for isolated individuals or people living in more rural areas — and that in and of itself would increase their access to legal services and in turn increased access to justice.”

But the institute also noted the rules governing wills formalities and the creation of paper wills have been around for many years and have been working well, and therefore the traditional legal rules governing the creation of wills should only be altered to the extent that is required to accommodate electronic means.

MacKenzie said ALRI has “not heard too much yet” from the provincial government on the report, but noted the institute got a lot of positive reception when it was doing its consultation.

“Sixty-nine per cent of our public opinion survey respondents thought that electronic wills were a good idea, and they wanted to see them implemented in the province — and 59 per cent of our professional survey respondents, such as lawyers and estate planning professionals, were supportive as well,” she said.

Chinenye Anokwuru, senior press secretary with the Alberta Ministry of Justice, said in an email that the ministry is reviewing the report but no decisions regarding electronic wills have been made.

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