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The following document is a letter sent by Talon Regent to a Senior Crown Counsel at the Legislative Services branch of Saskatchewan Justice in response to their request for lawyers’ feedback on their Consultation Document considering potential amendments to The Wills Act that would allow electronically signed and stored Wills, Powers of Attorney and Health Care Directives. If you have any thoughts you would like to share with Mr. Regent or the government about this topic, feel free to contact us!
Introducing Myself
I am excited to hear the Ministry of Justice is considering the use of electronic signatures and electronic wills. My two main practice areas are Real Estate and Wills & Estates. Additionally, other lawyers tell me I am tech-savvy; I was listed by Canadian Lawyer Magazine as one of Canada’s top 25 most influential lawyers of 2020 for my work developing a virtual reality trial simulator.
When it comes to e-signatures, I have done significant research into the various methods available and the various statutes around the world that authorize their use on a variety of documents. I recently took the Land Titles Registrar to court over what I argued was an arbitrary refusal to accept electronically signed land titles documents. While I was unsuccessful, it was largely for technical reasons. The presiding judge appeared supportive of e-signatures but felt the court lacked jurisdiction to force a change in the Registrar’s policies.
Since that decision was rendered, the Saskatchewan Branch of the Canadian Bar Association assisted me in surveying Saskatchewan lawyers for their input on the use of e-signatures on land titles documents. The Saskatchewan Bar was nearly unanimous in its support for e-signatures. For this reason, I am glad to know your office is open to considering amendments that will allow e-signatures and e-wills.
Preliminary Consideration
Before you begin thinking about e-signatures, e-wills or other expansions of our Wills Act, it is worth asking if the government feels the current system has been operating acceptably. In particular, does your office feel that the current rules adequately mitigate the risks of forgery, allegations of forgery, and undue influence on the testator?
If your office feels that the current processes adequately address those risks, then e-signatures and e-wills of all kinds should be acceptable. With even the least secure methods of electronically signing and storing wills, there is still a greater capacity to examine the authenticity of an electronic will than a physical one. There are very limited means by which to forensically examine a physical will to determine its authenticity. Meanwhile, there are several more effective methods by which to forensically examine an electronic will for its method of execution, date of execution, location of execution, later edits made, and more.
If your office feels that the current processes do not adequately address security and evidentiary concerns, then new legislation can require even greater levels of security with e-wills including digital signatures, password protected wills, central government storage, and more. These requirements would effectively make e-wills superior to physical wills and substantially improve their evidentiary value.
Questions posed in the Consultation Document
Question 1: What elements should be met for an electronic will to be valid in Saskatchewan?
In my experience practicing Wills & Estates, I have only once litigated a case where a will was alleged to have been forged. In my review of the case law at the time, it appeared to me that these types of allegations are infrequent and typically meritless. There are almost always additional pieces of evidence that prove the validity of the will (witness testimony, lawyers’ records, etc.). On this basis, I suggest the simple and straightforward elements required in British Columbia are sufficient for the people of Saskatchewan as well. These include:
My concern with the requirement for digital signatures and other more complex forms of security is that these create a barrier for everyday Saskatchewanians. Excessive complexity creates Access to Justice barriers and would needlessly increase the court resources needed to address cases of “substantial compliance”.
Question 2: How should an electronic will be altered?
In the days of yore, re-writing a will from scratch could be a costly and time-consuming process. Parchment and ink were expensive. Even in the days of typewriters, it was an annoyance to re-type a will. Codicils and other acceptable methods of alterations saved time, money and effort. These days, it is easier for me to edit my Word copy of a will previously typed and print it for re-signing. Even if the original will was not drafted in my office, I can scan it, apply Optical Character Recognition, and immediately begin editing the document.
Other that the ease to produce a new will, the evidentiary concerns related to an altered e-will become more complex. As stated in the Consultation Document, there would have to be consideration of altering an e-will that has been physically printed and physical altered, or a physical will scanned then electronically altered. Several other complexities arise that make it undesirable to allow alteration of wills when re-drafting a will is now so easy.
I submit again that British Columbia’s legislation is well-considered and appropriate. Saskatchewan ought to disallow the alteration of wills.
Question 3: How should an electronic will be revoked?
British Columbia’s legislation allows for revocation in the following ways:
The Uniform Act put forward by the ULCC suggests the following additional sections “for certainty”:
I support BC’s legislation and see no reason to add the ULCC’s suggested sections. I take issue with one of the ULCC’s sections, being the third bullet point listed. Even the intentional deletion of one or more copies of an e-will should not be presumed as evidence of an intention to revoke. A person may intentionally delete an e-will after copying it from one computer to another, or one cloud storage option to another. While a copy has intentionally been deleted, there is no intention to revoke. This goes farther than the ULCC’s suggested addition, and it more accurately reflects how people use computers and transfer files.
Question 4: Where should an electronic will be considered to be executed?
As a young lawyer that has grown up in a digital age, I have always found it curious that we put so much value in the location of a document’s execution. A critical examination of “jurisdiction” suggests that the location of execution should largely be irrelevant. If a client of mine signs their will virtually during their holiday in Mexico, why should the testator’s location matter?
It is worth noting that nothing in our current Wills Act or the Queen’s Bench Rules requires that a will be executed in Saskatchewan. If there are still concerns as to jurisdiction or ambiguity, it may be worthwhile to add a section in the updated Act that specifically indicates the location of execution does not limit Saskatchewan’s jurisdiction when the testator has assets in the province.
Question 5: What concerns might arise by extending witnessing of electronic wills to persons other than lawyers?
Allowing only lawyers to witness documents via video is, frankly, elitest and ill-considered. Two non-lawyers can witness a will in-person. Why are two non-lawyers barred from witnessing wills via video? I have posed this question to the Law Society and several lawyers but have not received a good explanation.
The explanations I have received typically relate to a witness’s ability to monitor for duress and incapacity. However, the shift from physical to virtual mediums makes little difference here. If non-lawyers are unable to watch for duress or incapacity via video, are they able to do so any better in-person? For logical consistency, non-lawyers should be barred from witnessing wills in-person, or they should be permitted to witness wills via video.
If there are later concerns as to duress or capacity, those can be raised in the probate/administration process.
Question 6: What, if any, benefit would the introduction of signing in counterpart provisions have in Saskatchewan?
If the province introduces legislation allowing for e-signatures and e-wills, physical counterparts and electronic counterparts seem unnecessary. They create additional complexity when one counterpart is physical and another is electronic. They create additional complexity for processing in court. They create additional complexity when examining for the validity of a will when it is challenged. They create additional complexity if/when the court eventually implements AI processing of wills for probate/administration.
There is no legal reason we should not allow for counterparts. They are allowed with most other kinds of documents. If the government and the courts are prepared to deal with the small inconveniences of the occasional counterpart-signed wills, they may slightly improve Access to Justice for individuals with disabilities or individuals who have difficulty with computers.
Question 7: Are there any additional concerns that may arise for electronic powers of attorney or electronic health care directives?
I concur with the ULCC in recommending the same provisions for e-wills, POAs and HCDs on the basis that the same concepts apply. All the same considerations of abuse, security, evidence, forgery, etc. are the same. The fact that POAs and HCDs don’t have court oversight is irrelevant. That type of comment assumes e-signed documents are somehow more problematic or less secure than physically signed documents. In essentially all circumstances, e-signed documents will offer greater protection than a physically signed document. Therefore, whatever rules are implemented for will should be extended to POAs and HCDs as well.
A Word on “Originals”
Consideration should be given to the idea of an “original” will in the context of one drafted, signed and stored electronically. An “original” will created electronically cannot be supplied to a courthouse for probate because any transmission thereof is a mere “copy”. Better wording may include “unaltered copy”. Failure to allow for unaltered copies of a true original would cause many problems.
For example, if a lawyer’s system crashes or is seized by ransomware, the lawyer will likely have a backup of their server. When restoring their system from backup, it cannot be said that any electronic wills stored on the backup are truly “originals”. Another example would include someone who stores their original e-will in the cloud. Technically speaking, this document will be bounced around between many internal servers managed by the cloud provider, at which point the idea of an “original” is an illusion.
Additional Comments
The questions listed in the Consultation Document are good ones. They address many of the concerns raised by various stakeholders. However, it is worth thinking bigger given there is already change afoot.
For example, the province could set up a Wills registry in partnership with ISC for the electronic storage of all wills in Saskatchewan. This type of registry would be of major assistance in reducing the number of “lost wills”, managing issues around revocation of wills, creating an initial screening of wills for compliance with formalities, and otherwise improving the efficiency of our provincial death-management processes.
Alternatively (or in addition), the province could establish its own will drafting program similar to Willful.co or partner with them. A program like this would meet the needs of 99% of Saskatchewan residents and create major improvements for Access to Justice. While it may draw the ire of estate lawyers throughout the province, it would be a significant improvement to our current system.
Conclusion
I am excited to see your office is considering the inclusion of e-signatures and e-wills. After a careful review of other jurisdictions rules and the technical implications of these changes, I have no doubt you will find the changes are of substantial benefit to our province. By mostly mirroring the legislation enacted in BC, we will be able to improve consistency in the law across provinces.
My only request is that you seriously consider my additional comments. Having a Wills Registry and a provincially endorsed will drafting program would make Saskatchewan a world leader in the probate and administration of estates. It would save the government and its citizens a substantial amount of money in legal fees and court fees.
I have designed and implemented complex programs and systems both as part of my legal practice and tangential to it. Combined with my understanding of Wills & Estates Law, I am in a position to be of assistance in designing both a Wills Registry and a will-drafting program. While the team at ISC is likely already well equipped to create both of these, I am open to helping on these projects or providing additional input if you have more questions.
Kind regards,
Talon Regent, BBA, JD
Lawyer