On November 28, 2022, the Government of Saskatchewan introduced The Wills Amendment Act, 2022 (the "Amendment Act")1, which will enable the creation of electronic Wills and use of electronic signatures and remote witnessing in the province of Saskatchewan. The Amendment Act will modernize The Wills Act, 1996,2 bringing it in line with recent recommendations made by the Uniform Law Conference of Canada and changes to Wills and Estates legislation made by other provinces.
The most significant advancement under the Amendment Act is that it permits the creation of a valid electronic Will. A Will in electronic form is one that is readable as text at the time it is made and is accessible and capable of being retained in a manner usable for subsequent reference.3 An electronic Will is not valid unless:
- it is in electronic form;
- it is signed by the testator with the electronic signature of the testator or by another individual in the testator's presence and by the testator's direction;
- the signature is made or acknowledged by the testator in the presence of 2 or more witnesses, and those 2 witnesses attest and sign the Will, or acknowledge their electronic signatures in the Will, in the presence of the testator; and
- at least one of the 2 witnesses is a lawyer.4
Electronic Wills are not subject to the same amendment and revocation requirements as paper Wills. While a paper Will may be altered by drawing lines through certain provisions or words in the Will and including a signature of the testator and witnesses in the margin or some part of the Will after such alteration is made, if a testator wishes to make an alteration to an electronic Will, they must make a new Will in accordance with the Amendment Act.5
If the testator wishes to revoke an electronic Will, it may do so by:
- making another Will;
- providing a written declaration that he or she revokes all or part of their Will;
- deleting one or more electronic versions of the Will or of part of the Will; or
- by burning, tearing or otherwise destroying all or part of a paper copy of the Will, in the presence of a witness.6
Once revoked, an electronic Will cannot be revived.7
Note that a holograph Will, which is made in the handwriting of the testator and signed by the testator with no further requirements as to the presence of a witness, may not be created electronically and form a valid electronic Will.8
The COVID-19 pandemic highlighted the benefits of electronic documents, signatures and remote witnessing, with many legal documents and transactions being facilitated via electronic means. The Amendment Act will extend these benefits to the Wills and Estates practice area and improve efficiency when drafting and executing Wills. However, it is important to note the challengeable circumstances that may be present when a Will is signed electronically, such as the presence of undue influence or a lack of requisite testamentary capacity at the time of signing, which may result in the will being set aside, as further set out in the following related blog post by colleagues Curtis J. Onishenko, KC and Paige E. Van de Sype: https://www.mckercher.ca/resources/setting-aside-a-will-incapacity-or-undue-influence. Electronic Wills can impose a higher risk for challenge in these areas as it is often more difficult for a witness or lawyer to fully evaluate a testator's circumstances via electronic means as opposed to an in-person meeting. It is imperative that the lawyer witnessing an electronic Will takes all reasonable steps to verify that the aforementioned challengeable circumstances are not present.
Updates on the Amendment Act will follow as they become available.
This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.
Footnotes
1. Bill 110, An Act to amend The Wills Act, 1996, 3rd Sess, 29th Parl, 2022 (first reading 28 November 2022).
2. SS 1996, c W-14.1 [Wills Act].
3. Amendment Act, s 2.
4. Ibid, s 5; Wills Act, supra note 2, s 7(3).
5. Ibid, s 7.
6. Ibid, s 9.
7. Ibid, s 10.
8. Ibid, s 6.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
