The law pertaining to Wills has been in place for almost 200 years. Over that time, very little has changed in the requirements to create a legal Last Will and Testament. The law has always stated that a Will must be written on paper and signed in ink in the presence of two witnesses, who must also sign the document in ink in the presence of each other. But over the last 20 years we have seen the emergence of online Will services, Digital Wills, and Electronic Wills. The definitions of these modern Wills have been evolving, and cause a great deal of confusion. In this article we would like to explain the differences between these documents.
An Online Will
A document written by an online Will writing service, but then downloaded and printed to be signed in the presence of two witnesses. It’s a Will writing service offered online. There isn’t really such a thing as an Online Will, other than the Electronic Will described below.
A Digital Will
A document that describes the handling of your digital assets, including those of financial value and those of sentimental value. These can range from social media accounts to cryptocurrencies. This is described outside of your traditional Last Will and Testament, and usually appoints somebody to manage this activity (i.e. your “Digital Executor”).
An Electronic Will
A document that is signed electronically by yourself and by your two witnesses. The signing is usually completed remotely via video link, and the document can then be stored electronically in the cloud. At the time of writing, British Columbia is the only Province that legally accepts an electronically signed and stored Will.
At LegalWills.ca we have always felt that technology could do far more for Will writing and estate planning than the law allowed. The legal requirements for writing a Will hadn’t fundamentally changed for nearly two centuries. A Will had to be written on a piece of paper, then signed in ink in the physical presence of two adult witnesses, and then stored in a filing cabinet somewhere.
This was, of course, problematic. Countless Wills were left undiscovered, or even accidentally lost in a house fire or natural disaster. The requirement to be in the physical presence of two witnesses became a significant barrier during the COVID-19 pandemic.
Importantly, these “old fashioned” requirements did nothing more to protect the rights of the Will writer. Wills could just go missing or be fraudulently signed by unscrupulous family members. It was not uncommon to see elderly parents sign a document under suspicious circumstances, resulting in family members challenging each other through the court system.
2020 was a significant year for estate planning because, for the first time, the law that described the execution requirements was re-written for COVID-19. The witnesses were no longer required to be physically present, but they could witness the signing through a video link. However, the paper document would still have to be couriered around to each witness for a physical signature.
In British Columbia, 2021 is a major watershed moment in Will writing law because of Bill 21. This Bill, for the first time, allows not only remote witnessing, but also electronic signing and storage of Wills.
It’s worth noting that there is some inconsistency with terminology. The BC law refers to “Electronic Wills” and many people are using the term “Digital Wills” to refer to a Will that includes Digital Assets. At LegalWills.ca we feel that using the term Digital Wills to refer to digital assets is confusing, so in this article we will refer to a document that is electronically signed and electronically stored as both Digital Wills and Electronic Wills.