Ontario is considering converting emergency pandemic measures on signing wills electronically into permanent legal reforms and some lawyers are urging the province to make fully digital wills a reality.
After scrambling to pass an emergency order in April to allow virtual signing and witnessing of wills at the height of the COVID-19 pandemic, the Ontario government put out a call to the legal community last month seeking proposals for permanent reforms to the law on estates.
One proposal includes draft legislation that would go further than the temporary measures and allow for wills to be drafted, signed, witnessed and stored online, replacing the need for paper copies entirely.
This would follow the lead of British Columbia, several U.S. states, Britain and Australia, where such changes are either already in place or under consideration, said Lena Koke, chief executive officer of Toronto-based estates and real estate law firm Axess Law, who is one of the proponents of the proposal.
She said electronic wills would improve affordability and access to estate planning for rural residents as well as bring the province in line with what many Canadians – who are accustomed to using digital means for banking and real estate transactions – already believe is legal.
“The changes with virtual witnessing are a step in the right direction. The problem is it’s still practically very challenging,” Ms. Koke said.
She noted that executing a will under the emergency order (which has been extended to Oct. 22) requires the will maker to sign a paper version over a video chat, then send a copy by courier to one witness who signs it on video chat before sending that on to a second witness who signs it via another video chat. One of those witnesses must be either a lawyer or paralegal and the number of appointments with those professionals, plus courier fees, can be costly.
These barriers to making a will can seem outdated when you can, for example, sign a contract to buy a home using digital signatures online. According to a July survey commissioned by online will-making startup Willful.co, 84 per cent of Canadians and 81 per cent of respondents from Ontario believe it’s legal to sign your will online in Canada. The Angus Reid survey, which polled 1,500 Canadians on July 10, also found 29 per cent of respondents have procrastinated completing their wills or powers of attorney for financial affairs or personal care because they involve offline steps.
“The emergency order had to happen because COVID simply made it impossible for people to meet. Now we’ve had time to digest what works and what can be improved,” says Patrick Hartford, CEO of NoticeConnect, a Toronto-based technology company that publishes estates-related public notices online. He is working with Ms. Koke on the draft legislation and the pair have garnered support from about 20 lawyers at well-known estates firms who have signed on to the proposal.
“COVID has made the profession more open to the idea of doing things remotely and electronically," Mr. Hartford said, noting the estates law community has historically been hesitant to embrace changes.
Still, not everyone is convinced. The Society of Trust and Estate Practitioners (Canada) raised concerns about making virtual witnessing permanent in response to the government consultation. STEP Canada argued that lawyers can’t be certain who is in the room for video signings, that many clients are not comfortable with technology, and that it is more difficult to determine over video whether a client understands the actions they are taking.
“Vulnerable individuals will be more reliant on family and friends in making arrangements to sign documents, increasing the risk of financial abuse,” STEP Canada wrote, adding that documents witnessed over video could be more open to legal challenges.
Peter Lown has been working on draft legislation on electronic wills with the Uniform Law Conference of Canada, which makes recommendations to harmonize laws across the country. The ULCC advisory committee he leads has taken concerns about fraud, undue influence and the will maker’s mental capacity into consideration, he said, noting that safeguards can include asking clients to pan their camera view wide to ensure no one else is present.
Mr. Lown said the ULCC’s draft differs from Ms. Koke and Mr. Hartford’s proposal in some respects: The ULCC legislation would not require a legal professional to be one of the witnesses to a will’s execution and would not require electronic wills to be stored in an online will registry. “We set out to create an exact parallel to paper wills,” he said, noting that the ULCC committee did not see electronic wills as “so suspect that you can’t trust them unless you have a lawyer as a witness.”
Ontario Attorney-General Doug Downey said the government has yet to come to any conclusions and that it received a range of responses to its consultation, from “not sure that’s where we should be at all to others saying we should go even further and have electronic wills.”
The steps by other jurisdictions to endorse the use of technology mean Ontario can look to those experiences to help strike the right balance, Mr. Downey said.
“The system has to catch up. At the same time, we have to have the safeguards in place. We have to make sure that we’re not encouraging any kind of frauds and that we have integrity in the system, so people know what they’re signing and know what they’re doing.”
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