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LE TESTAMENT ELECTRONIQUE EN COLOMBIE BRITANNIQUE

Dernière mise à jour : 30 mai

http://www.radio-canada.ca/util/postier/suggerer-go.asp?nID=4551073


Latin Lawyer interviewed by Radio Canada on Bill 21: Wills, Estates and Succession Amendment Act passed August 14.

How the electronic will will work in BC (French version)



BILL 21 – 2020 WILLS, ESTATES AND SUCCESSION AMENDMENT ACT, 2020

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 The Wills, Estates and Succession Act, S.B.C. 2009, c. 13, is amended by adding the following section to Division 1 of Part 4:

Definitions

35.1  In this Part:

"communicate" means communicate using audiovisual communication technology, including assistive technology for persons who are hearing impaired or visually impaired, that enables persons to communicate with each other by hearing and seeing each other;

"electronic" means created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means;

"electronic presence" or "electronically present" means 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.

2 Section 35.1 is amended

(a) by renumbering the section as section 35.1 (1),

(b) in subsection (1) by adding the following definitions:

"electronic form", in relation to an electronic will, means a form that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of being reproduced in a visible form;

"electronic signature" means 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;

"electronic will" means a will that is in electronic form. , and

(c) by adding the following subsection:

(2) A record in electronic form is deemed not to be capable of being recorded, stored or reproduced if the person providing the record inhibits the recording, storage or reproduction of the record by the recipient.

3 The following section is added:

Electronic presence

35.2  (1) In this Part, except in section 38, a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's electronic presence.

(2) For certainty, nothing in this section prevents some of the persons described in subsection (1) from being physically present and others from being electronically present when the action is taken.

(3) If a will-maker and witnesses are in each other's electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.

(4) Copies of a will in counterpart are deemed to be identical even if there are non-substantive differences in the format of the copies.

4 The following section is added:

Electronic signature

35.3  (1) For the purposes of sections 37, 40, 43, 62 and 77,

(a) a reference to a signature includes an electronic signature and a reference to a statement being signed includes the statement being signed electronically, and

(b) a requirement for the signature of a person is satisfied by an electronic signature.

(2) Section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.

(3) An electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.

5 Section 37 is amended

(a) in subsection (1) (b) by striking out "acknowledged by the will-maker as his or hers" and substituting "acknowledged by the will-maker as the will-maker's signature", and

(b) by adding the following subsections:

(3) The requirement under subsection (1) (a) that a will be in writing is satisfied if the will is in electronic form.

(4) An electronic will is a will for all purposes of this Act and any other enactment.

6 Section 54 (1) is amended by striking out "to a will" and substituting "to a will other than an electronic will,".

7 The following section is added:

How to alter electronic will

54.1  (1) A will-maker seeking to make an alteration to an electronic will must make a new will in accordance with section 37 [how to make a valid will].

(2) For certainty, section 54 does not apply to an electronic will.

8 Section 55 (1) is amended by striking out "A will or part of a will" and substituting "A will other than an electronic will or a part of a will other than an electronic will".

9 The following section is added:

How to revoke electronic will

55.1  (1) An electronic will or part of an electronic will is revoked only in one or more of the following circumstances:

(a) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, deleting one or more electronic versions of the will or of part of the will with the intention of revoking it;

(b) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will;

(c) the circumstances described in section 55 (1) (a) and (b) [how to revoke will];

(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under section 58 [court order curing deficiencies] that

(i) the consequence of the act of the will-maker or the other person is apparent, and

(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.

(2) A written declaration made in accordance with section 55 (1) (b) may be in electronic form and signed with an electronic signature.

(3) For certainty, an inadvertent deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.

10 Section 57 (1) is amended by striking out "A will or part of a will" and substituting "A will other than an electronic will or a part of a will other than an electronic will".

Transitional Provision and Repeal

Transition – will made during specified period

11  (1) In this section, "specified period" means the period that starts on March 18, 2020 and ends on the date this Act receives Royal Assent.

(2) A requirement in Part 4 of the Wills, Estates and Succession Act that a person take an action in the presence of another person is satisfied in relation to a will made in the specified period if the will was made in accordance with section 35.2 of the Wills, Estates and Succession Act, as added by section 3 of this Act, whether or not it purports to have been made under the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020.

(3) A will made in the specified period that complies with section 35.2 of the Wills, Estates and Succession Act, as added by section 3 of this Act, whether or not it purports to have been made under the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020, is not invalid solely because the will-maker and the witnesses were in each other's electronic presence.

Repeal

12  The Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020, is repealed.

Commencement

13  The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

ItemColumn 1

Provisions of ActColumn 2

Commencement1Anything not elsewhere covered by this tableMarch 18, 20202Section 2By regulation of the Lieutenant Governor in Council3Sections 4 to 10By regulation of the Lieutenant Governor in Council4Section 12By regulation of the Lieutenant Governor in Council

Explanatory Notes

SECTION 1: [Wills, Estates and Succession Act, section 35.1] adds a definition of "electronic presence" and related definitions to Part 4 of the Act.

SECTION 2: [Wills, Estates and Succession Act, section 35.1]

  • adds definitions of "electronic signature" and "electronic will" and a related definition to Part 4 of the Act;

  • sets out when an electronic record is deemed not capable of being recorded, stored or reproduced.

SECTION 3: [Wills, Estates and Succession Act, section 35.2] provides for persons to be in each other's electronic presence when taking actions under the Act.

SECTION 4: [Wills, Estates and Succession Act, section 35.3] provides for the use of electronic signatures in wills and other documents.

SECTION 5: [Wills, Estates and Succession Act, section 37]

  • provides for the making of electronic wills;

  • updates language.

SECTION 6: [Wills, Estates and Succession Act, section 54] clarifies that an electronic will cannot be altered in the same manner as a physical will.

SECTION 7: [Wills, Estates and Succession Act, section 54.1] sets out how an electronic will may be altered.

SECTION 8: [Wills, Estates and Succession Act, section 55] clarifies that an electronic will cannot be revoked in the same manner as a physical will.

SECTION 9: [Wills, Estates and Succession Act, section 55.1] sets out how an electronic will may be revoked.

SECTION 10: [Wills, Estates and Succession Act, section 57] clarifies that an electronic will cannot be revived in the same manner as a physical will.

SECTION 11: [Transition – will made during specified period] provides that wills made on or after March 18, 2020 up until the date of Royal Assent are valid if made in the electronic presence of witnesses.

SECTION 12: [Repeal] repeals the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020.


1.What is an Electronic Will Under the Will, Estates and Succession Amendment Act, 2020 (Bill 21).

On August 14, 2020 Bill 21 received Royal Assent permitting the electronic presence of a will-maker (testator) and the witnesses to sign a will. In British Columbia, electronic methods can now replace the long-standing rite of physical presence and adapt the in-writing requirement for preparing, executing, altering or revoking a will.


Bill 21 has amended Sections 35 (definitions), 37 (How to make a valid will), 54 (How to alter will), 55 (how to revoke will), 57 (revival of will) and introduced a specific period to validate e-wills made during the first wave of the COVID-19 pandemic (from March 18, 2020).

New Section 37 (1)(b) of the Wills, Estates and Succession Act, SBC 2009 c 13 (“WESA”) struck out testator’s acknowledgement “as his or hers” by substituting for “as will-maker’s signature”. It has also added to the referred subsection that the “in writing” requirement can be fulfilled by being signed at the will-maker’s end, or by the will-maker’s acknowledgement that his or her signature was done at his or her end in the presence (electronic or not) of 2 or more witnesses at the same time.

New Section 35 defines crucial terms to explain an electronic will:

- In general, a subsection 1 admits technological application: ““Communicate” means communicate using audiovisual communication technology, including assistive technology for persons who are hearing impaired or visually impaired, that enables persons to communicate with each other by hearing and seeing each other;”


- That new subsection specifically defines “electronic form”, “electronic signature” and “electronic will” as:

  1. “electronic form” means created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means.

  2. “electronic signature” means 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.

  3. “electronic will” means a will that is in electronic form and a record in electronic form is deemed not to be capable of being recorded, stored or reproduced if the person providing the record inhibits the recording, storage or reproduction of the record by the recipient.

Definitions b) and c) will enter into force by regulation of the Lieutenant Governor in Council.


2. How to Prepare and Execute An Electronic Will.

Following Section 5 of Bill-21: the electronic form of a will satisfies the in-writing requirement and an electronic will is a will for legal purposes. This principle was translated in the Act by amending Section 37(1)(b) as stated above and adding a legal definition for “electronic presence” in Section 35.2 as follows:


Electronic presence

35.2 (1) In this Part, except in section 38, a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's electronic presence.

(2) For certainty, nothing in this section prevents some of the persons described in subsection (1) from being physically present and others from being electronically present when the action is taken.

(3) If a will-maker and witnesses are in each other's electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.

(4) Copies of a will in counterpart are deemed to be identical even if there are non-substantive differences in the format of the copies.


It is conclusive for preparing an e-will that an “electronic presence” will be necessary as a defining element, otherwise the will-maker will be physically present to produce a “traditional or non-electronic will”. Undoubtedly in a e-will, the testator is always electronically present.


According to the legal definition, to prepare an e-will, the legal counsel should verify:

● That the “electronic presence” of the necessary parties (will-maker and witnesses) to a will allow simultaneous communication to an extent that is similar to a physical communication.

● That if there is a combination of physical and electronic communication between the necessary parties, which means that some of them are physically present and others are electronically and simultaneously present, there is an effective communication “similar” to a physical communication.

● That the electronically present necessary parties will be signing complete and identical copies of the will in counterpart.

● That if the copies of a will have different format, for example when electronically made following the “electronic” definition on Section 35.1, there are non-substantive differences between them.

Basically, the counsel is responsible to certify that:

● The different formats of the e-will do not create substantive differences on its content and provisions;

● The electronic communications between the necessary parties do not cause an interference to reduce them under the standard of a physical communication, and;

● The electronically connected parties sign identical copies of the will in counterpart as if they were physically present.

3. Remotely and/or Electronically Signing the Will

Real time: in agreement with the above-mentioned rules, testator and witnesses’ signatures or/and e-signatures must happen in real time, and all the parties must be able to communicate as if they were physically present.

Electronic signature: the third reading of Bill 21 at the Legislative Session adds a specific meaning for “electronic signature” Section 35 (3). That definition is different from the already established in Section 1 of the Electronic Transactions Act (ETA, SBC 2001). Although, that new Section 35(3) depends on further regulation and has not come yet into force.

ETA’s principles application: ETA Section 1 defines electronic signature means information in an electronic form E-wills were conceived in the middle of a pandemic, but also enacted to become a new form of will in BC.

Uniqueness of E-Signature: E-signatures for e-wills require more formalities than in other use-cases. Section 5 of ETA relies on a writing record produced in an electronic form and accessible in a manner usable for subsequent reference. Section 4 demands obtaining consent or an inference of consent from the person deciding to electronically sign. There should be no inference of consent for e-signing an e-will that a person has created or adopted in order to sign a record and that is attached to or associated with the record.

ETA’s definition covers e-signatures between physically distant parties and/or repeated (sometimes massive) signatures in electronic or even physical documents. In a different light, the electronic signature in a will represents a very unique and fundamental act for the testator. It will carry different requirements for both the testator and the witness(es).


For example, viewing a recording of the testator or the witness(es) signing seems not sufficient for a valid attestation because it relates to the electronic presence and not to the electronic signature. The recording must be accompanied by a consent declaration from the testator and the witnesses, stating that they are wilfully signing electronically. Whether the attesting professional (notary or lawyer) must participate in the recording is not yet defined.


The implications of admitting third-party service providers (such as any e-signature program or software available in the market) to record e-signatures for e-wills creates a risk of future validation. A valid attestation should verify this service in order to ensure that the remote signature was authentically made.



Therefore, the use of a previously registered e-signature on an e-will can adversely impact its validity because:

  1. The record must be accessible for a long time, especially if the will’s signature is contested.

  2. In a commercial context, third party platforms give users the ability to allow other persons to use their signatures. This is not suitable in the context of an e-will, and can expose the document to undesired modifications.

  3. E-signature services firms have millions of users and offer innovative supplements such as cloud-based records, native file support, multiple storage, application programming interfaces and workflow integration, active directories and identification management. These services have a high potential to mishandle e-signatures used on e-wills.

  4. These features are great in the context of business contracts, but they pose significant challenges in the context of e-wills.

  5. However, the frequent use of an e-signature can also evidence acceptance and understanding about the legal issues of digital signatures.

E-signatures seek to automate business and administrative processes. Since e-signatures are not linked to the real action of signing the documents at hand, new services have emerged in order to protect them from repudiation. The act of signing a will comes with all the extrinsic formalities needed for its validation. WESA Section 39 clarifies doubts about signature placement. The intrinsic problem of electronic or digital signatures is that they operate mostly like stamps, and the user takes the risk of determining how the signature was generated. Therefore, the e-will testator assumes all liability for the cybersecurity and privacy risks arising from the uncertainties of the chosen interface. Subsequently (post-mortem), this risk is transmitted from the e-will testator and witnesses to the beneficiary(ies) and the performing parties of the will.


A digital declaration that the signers were aware of whether and what they have agreed to sign is mandatory for an e-will. This declaration provides an additional and substantial level of validation, facilitating the attestation. The digital declaration is indirectly referred to in the new Section 32.2 when defining electronic presence. E-testators and witnesses should also declare their acceptance and commitment to use a public key, admitting their chosen level of technical security level. This digital declaration is particularly useful for people who are mentally capable but impaired, disabled, illiterate, distant in remote communities or in different locations.


In order to solve these explained implications, WESA’s new Section 35 (3) introduces a more detailed definition for e-signature in a will. The reference to the signature also relates to an electronic signature and a statement of signature also includes the statement being signed electronically. The requirement for the signature of a person in an e-will is therefore satisfied by an electronic signature.


4. Coexisting Originals of the Same Will

The “electronic presence” determines whether the witnesses and testator can remotely and simultaneously sign identical copies of the same e-will. This means that many originals of the will may coexist and that there will be no “true” original for the e-will.


Wills need to be stored in logical places in order to be found by the involved parties. The e-will is conceived as a recordable document. According to a frequent legal practice, the will can also be stored at the lawyer or notary’s office who has already prepared the will. If there are many true originals of an e-will, coexisting at the time it was signed, it is recommended to identify them immediately after execution. The identification should be made by completing a digital declaration from the signers, numbering the originals, explaining how they are going to be assembled and stored.


Normally an executor will track a will to the lawyer or notary’s office and request the original. The executor will receive the original under receipt with a short free or charged consultation from the professional who has prepared and stored it. In the case of an e-will, that consultation should demonstrate whether “electronic presence” was accomplished, showing the records of how the e-will was signed and executed.


In BC, no other digital form of authentication such as retinal scans, voice or facial recognition, video recordings can substitute e-signatures. Further regulation by the Lieutenant Governor in Council will accurately define how an "electronic signature” can be represented by other kinds of electronic authentication.


Nothing seems to prohibit that the evidence of the date of signature in an e-will, which is another relevant element for multiple purposes, results from digital records in electronic presence.


A consolidation of all the “true originals” of an e-will is also necessary. “True originals” must be identical copies of the will signed in different ends at the same time. Consolidation in one storage requires a subsequent reunion of each original in one document. Consolidation is also a common practice after the execution of an electronic contract. However, electronic contracts do not necessarily need to be simultaneously signed by all the parties.

As a precedent in Canada, Bill-21’s amendment to Section 58 (1) will allow the recording or storing of wills electronically, including all the necessary data to be read by a person and reproduced in a visible form. However, digitally stored e-wills may need a court order to cure potential deficiencies.

5.Electronic Presence vs. Jurisdictional Distancing

The electronic presence must be understood as a form of communication between the intervening persons in an e-will. It is a very powerful tool to approach and connect distant people for the solemn purpose of signing a will.


That connection must be conclusively deemed as their consent related to the exclusive governance of the law of British Columbia. Otherwise, if some discrepancy is found about the governing law, the electronic will can automatically result in an invalid expression of will.


Distance also creates problems of identification and understanding. It seems relevant that the electronic presence determines the location, understanding capacities and full identification of the witnesses. WESA Section 40 defines the capacity to become a witness to wills and is not excusable by the fact that the witnesses are in different jurisdictions.


Indeed, the recording during “electronic presence” seems convincingly fundamental to validate an e-will. According to BC law, witnesses must sign the same e-will as the testator, but they are not required to watch the testator’s signing. In BC, witnesses’ e-signatures do not mean that they are reasonably satisfied that the e-will they signed is exactly the same as the testator’s, and/or that they have received the same copy of the e-will directly sent from the testator. A declaration to that end is advisable.


In conclusion, “electronic presence” requires a written statement (for instance, as an extra clause on the will) or a recording obtained from the witnesses and the testator concerning:

● Their acceptance of BC Law as the sole governing law at least for the execution of the e-will,

● Their reasonable satisfaction that they are observing the testator simultaneously signing the same e-will that is submitted to them

● Their reasonable satisfaction that they are signing the same e-will signed by the testator.

● Advisably, their reasonable understanding that they have received the e-will directly from the testator asking them to sign it.

6. Altering and Revoking E-Wills.

Bill 21 brought specific provisions into WESA for altering and revoking e-wills, but they require further regulation by Lieutenant Governor in Council.

According to Section 54.1 an e-will cannot be altered. A new will is necessary according to Section 37 (“How to Make a Valid Will”). This is a safety measure in order to avoid abuse of the “electronic presence” factor. This measure will preserve the e-will through time, preventing it from becoming a series of interpretable electronic records.

Therefore, WESA Section 54 does not apply to an electronic will.


E-wills can be revoked. New Section 55.1(1) authorizes different ways to revoke the entirety or a part of an e-will:

● Deleting one or more electronic versions of the e-will with the intention to revoke it;

● Burning, tearing or destroying the entirety or a part of the the e-will in the presence of witnesses with the same intention to revoke it;

● By making another will according to Section 37, and obtaining a declaration from the testator revoking the electronic will. The declaration can be made electronically.

7. Bill 21 Specified Period and Curing Wills Under Digital Format.

Bill 21 received Royal Assent on August 14, 2020. It was debated in Parliament during the COVID-19 pandemic, introducing a transitional provision (Section 11). Electronic wills made since March 18, 2020 - whether or not purporting to have been made under the Ministerial Order 161/2020 - are thus valid.


In British Columbia, the unequivocal intention of the will-maker prevails over strict compliance with legislation.


WESA Section 58 permits a Court order curing a will’s deficiency:

● In Jacobson Estate (Re), 2020 BCSC 1280, BC Supreme Court ruled that the purpose of WESA Section 58 is to ensure that discernible testamentary intentions are not thwarted “for no good reason by a failure to comply with statutory requirements”.

● In Rempel Estate v. Dudley, 2020 BCSC 1776, BC Supreme Court decided under WESA Section 58 about whether certain succession of documents in digital form may represent the testamentary intentions of the deceased. M. Rempel died with no heirs and no will was found. An officer of Canada Trust found (in M. Rempel’s residence) personal digital records (two memory sticks) testamentary in nature but unsigned and not witnessed. There were folders and subfolders to consider in those memory sticks, and the court admitted the evidence as an exception to the hearsay rule. These documents were produced by the deceased over a period of time and found reliable as to his intentions regarding the disposition of his estate. The court also found that these digital records were a “a will to be cured” because they contained titles as “will” in it, some formalities as his address, provisions made including his feline companions, property divided, wording as “last wishes” and dated.

8. Final Recommendations:


· E-wills are intended to solve distancing, disabilities and impairing problems of capable will-makers and witnesses.

· E-wills can be used to describe a large number of documents including those written in a computer but not necessarily limited to them.

· An e-will should be in writing. Exceptionally, it can also be recorded in any other electronic format, but testator and witness should explain why they have chosen a different system to record it and express their consent to use it. In that case, the e-will is likely to be cured in courts.

· Courts in BC have already recognized unsigned digital documents as a curable will.

· The electronic presence implies a simultaneous presence of the testator and the witnesses at their own end connected by an electronic communication system.

· The electronic presence creates a problem of multiple true originals that should be previously consolidated to be stored.

· The electronic presence requires recording consent from the testator and the witness.

· That consent includes accepting BC law as the governing law at least for the execution of the e-will. Limiting the application of BC law may turn the e-will valid or curable. Capacity, signature and other formalities must be certainly governed by BC Law.

· E-wills must be signed or electronically signed by the testator and the witnesses.

· Signature or e-signature must be on identical copies of the will.

· Testator and witnesses must record their reasonable satisfaction that they are signing identical copies. It is advisable to collect evidence that they have been sent by the testator himself to the witnesses.

· Witnesses must record their reasonable satisfaction that the testator has signed the e-will.

· E-signature in an e-will should not be assimilable to e-signature in other documents.

· E-signature for e-wills should make proof of uniqueness to avoid exposure to undesired modifications.

· Even if alterations are not permitted, undesired modifications can revoke an e-will, change its dispositions or create a new will by using the same e-signature. E-signatures for e-wills must be preserved in time for post-mortem validation.

· The e-signature for an e-will should also be supplemented by a statement confirming the intention to sign electronically.

· An e-will made offline should be written on an electronic device, they can be handwritten in stylus, e-signed in physical presence and saved on a hard drive.

· An e-will made online depends on a third-party service. Testator’s original can be created and shared with witnessed to be e-signed on a platform that is not normally used to store e-wills.

· An e-will made by a qualified custodian (for instance, a notary or a lawyer) depends on the appropriate method selected to write the e-will. Originals should be exchanged and signed streamlining the formal process of creating and executing an e-will.






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