With the introduction of Bill 21-2020, British Columbia has proposed a series of long-awaited amendments to its Wills, Estates, and Succession Act that will modernize the will-making process in the province.
The proposed amendments will enable BC Courts to accept a will that is created, recorded, transmitted or stored on an electronic device (such as a computer, tablet or phone) and signed electronically, with no printed copy, so long as the will can be reproduced in a visible form. The amendments also allow an electronic will to be witnessed electronically, by witnesses in different physical locations, effectively creating "contactless" wills in BC.
This approach has a direct benefit to public health by enabling physical distancing during the will process. By eliminating the requirement for witnesses to be physically present in the same room as the will-maker, the need for an in-person hospital or care-home visit can be eliminated entirely, and the risk of unnecessary exposure to viruses such as COVID-19 can be reduced.
Other benefits include improved access to estate planning services for those who are required to shelter-in-place, and increased access to legal services for those who live in remote communities.
Initial concerns regarding this new practice include all the known and unknown risks looming in the background of any electronic transaction, such as a breach of privacy or security. Other concerns include the need for will-makers to access and adapt to new technologies that may be unfamiliar to some.
In some cases, this could increase the potential for undue influence, especially in circumstances where the will-maker might require help with the settings on their phone, tablet, or laptop, or where a person's capacity to make independent decisions could be diminished or impaired. We anticipate new rules associated with electronic witnessing that will likely include formalities and guidelines for recording a video call when the electronic witnessing takes place.
These proposed amendments follow closely the interim measures introduced via ministerial orders during the COVID-19 pandemic and would apply retroactively to wills created after March 18, 2020. While other provinces had similar interim measures during the pandemic, BC is the first province to introduce such changes to its legislation.
Bill 21-2020 passed Third Reading on July 15, 2020, so we can expect Royal Assent to follow shortly. We anticipate forthcoming developments for other British Columbia estate planning documents such as Power of Attorney and Representation Agreements, which were subject to similar interim measures during the COVID-19 pandemic.
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