For many decades, the formalities associated with wills have undergone little modification. With the rise of technology and the use of apps for just about everything, the rise of unforeseen circumstances for probate courts to confront is a new reality.
The use of electronic wills – that is, wills that have been written, signed, and/ or attested using an electronic medium, is becoming increasingly popular as more and more people store their personal data on electronic devices and in “the cloud”.
However, proposals on whether electronic wills should be considered valid or invalid are still ongoing in Canada and in Ontario in particular. It is also hard to define what exactly electronic is – is it a will typed into a word-processing program by the testator on a computer and stored on its hard drive or is it a will signed by the testator with an authentic digital signature?
Documents electronically signed and stored have become more widely accepted in the American legal community and it is gaining quite a bit of traction in Canada. The Uniform Law Commission (ULC)’s drafting committee in the U.S. has been moving forward with the Electronic Wills Act so that the use of electronic wills are becoming valid in some states in the United States. However the question remains as to whether electronic wills, will become valid in Canada.
In Ontario, for a will to be valid, it must be in writing and the original is required for probate to be granted. Some lawyers have argued that a court could theoretically admit an electronic will (i.e. not an original copy) for the purposes of probate. However, Ontario still has a strict compliance regime with respect to the formalities of execution. It will be interesting to see whether Ontario courts will adopt the use of electronic wills as more and more Ontarians store their personal data online and on various electronic mediums.