Proposed Changes to the Wills, Estates and Succession Act

Proposed Changes to the Wills, Estates and Succession Act

On August 14, 2020, following the publication of this post, Bill 21: Wills, Estates and Succession Amendment Act, 2020 received Royal Assent. As a result, the Presence Provisions described below are now in force. The remaining Bill 21 amendments have yet to be brought into force by regulation.

The BC Legislature recently introduced Bill 21: Wills, Estates and Succession Amendment Act, 2020  (“Bill 21”), a piece of legislation that would allow for wills to be created electronically and witnessed remotely.

If brought into force, Bill 21 would amend the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) with respect to the creation and execution of a valid will in novel ways to accommodate electronic execution, including:

a) Form of Will

Expanding the definition of a will such that a will in “electronic form” would satisfy the requirement under section 37(1)(a) of WESA that a will must be in writing.

Bill 21 defines “electronic form” as a form that:

    1. is recorded or stored electronically;
    2. can be read by a person; and
    3. is capable of being reproduced in a visible form.

b) Signature Requirements

The signature requirements of the will-maker and witnesses in sections 37(1)(b) and (c) of WESA would be satisfied by an “electronic signature.”[1] An electronic will would conclusively be deemed to be signed if the electronic signature were in, attached to, or associated with the will such that it is apparent that the will-maker intended to give effect to the will.

Bill 21 defines “electronic signature” 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.”

c) Presence of Witnesses

The requirement in section 37(1)(c) of WESA that a person take an action in the presence of another person or while others are simultaneously present would be satisfied by “electronic presence.” It would further be permissible for the will to be signed in counterparts if the parties were present electronically (the “Presence Provisions”).

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.”

Bill 21 also contains provisions on altering, revoking, and reviving an electronic will that are not summarized here.

If Bill 21 passes as proposed, the Presence Provisions will apply retroactively to any will made on or after March 18, 2020. The remaining changes to WESA contained in Bill 21 (e.g., the ability to make an electronic will, the ability to sign electronically) would only apply to wills made on or after the date that Bill 21 comes into effect.

If you have any questions about Bill 21, a member of our Wills + Estates team  would be happy to assist you.

[1] At present, section 37 requires that a will be signed at its end by the will-maker in the presence of two witnesses, and signed by two witnesses in the presence of the will-maker and each other.

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