Would you create a digital Will?

Estate planning
Matters Beyond Wealth

The shift towards digital can have its benefits, but it also comes with a few risks. When it comes to digital Wills, do we know enough?

“It's fairly early, but I expect that over time as we have a tech-savvy population—there will be adoption… just like online purchasing and online banking. I said in the early days I'd never do either of those things, I think it's an inevitability.”
Peter Glowacki, partner at Borden Ladner Gervais LLP (BLG)

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Transcript

Intro Speaker:

Hello, and welcome to Matters Beyond Wealth with your host, Leanne Kaufman, president and CEO of RBC Royal Trust. For most of us, talking about subjects like aging, late life, and estate planning isn’t easy. That’s why we’re going to help get the conversation started on this podcast while benefiting from the insights and expertise of some of the country’s top experts. We want to bring you information today that will help to protect you and your family in the future. Now, here’s your host, Leanne.

Leanne Kaufman:

Digital technology has dramatically changed how we work and learn, but what about when it comes to our Wills? On December 1st, 2021, British Columbia became the first, and so far the only province in Canada to allow fully electronic digital Wills. These Wills can be signed and stored completely digitally. No printed original, paper copy, or even wet signatures are required. The Will-maker and the witnesses can sign these electronic Wills by electronic signature. This shift towards digital in many instances has its benefits, but it also comes with a few risks. Do we know enough when it comes to digital Wills?

Hello, I’m Leanne Kaufman, and welcome to RBC Wealth Management Canada’s Matters Beyond Wealth. From beautiful Vancouver, I am joined today by Peter Glowacki. Peter is a partner at the law firm BLG and practices primarily in the area of Wills, trusts, and estates law. A member of the Canadian Bar Association Wills and Trust Section, and an executive member of the National Charity and Not-for-Profit Law Section, Peter also has the TEP designation from the Society of Trust and Estate Practitioners. He’s involved in the planning and presentation of numerous educational sessions related to Wills, trusts, and estates, as well as charitable and not-for-profit matters.

Peter, thank you so much for being here today with me to discuss this new option of digital Wills in British Columbia and why this matters beyond wealth.

Peter Glowacki:

Thanks, Leanne. Happy to be here, and an interesting topic to start the New Year.

Leanne Kaufman:

It sure is! What does the province of British Columbia even mean when they refer to an electronic Will?

Peter Glowacki:

An electronic Will, it’s specifically defined in the Wills, Estates, and Succession Act, which is our legislation that covers sort of all things Wills and estates, and essentially, it’s a Will or a document that’s recorded or stored electronically, and that’s essentially the full definition.

Leanne Kaufman:

So how does an electronic Will differ from what the old law used to be or what we traditionally have thought of as a formal, proper Will?

Peter Glowacki:

The new legislation, or the new provisions in the legislation specifically contemplate and recognize the digital making and storage of a Will. Previously in BC, like most jurisdictions, you had to have a wet signature, so a physical document with wet signatures. Now, BC did have a provision in the Wills, Estates and Succession Act where the court might validate an electronic document or recording, but this certainly wasn’t a given, and so this specifically contemplates that and gives validity to these types of documents.

Leanne Kaufman:

And BC’s been at the vanguard of this for a while. I mean, that provision you just mentioned that was in place earlier around the court having the ability to at least recognize something as being a Will was something that was new and unique to BC even before this new legislation came out, but this really takes it a step further. Sometimes I think there might be confusion between an electronic Will or a digital Will that we’re talking about here under this legislation and some of the online Will drafting platforms that are out there. Can you explain the difference between those?

Peter Glowacki:

Yeah, keep in mind, this is still relatively early days in BC even when it comes to these electronic Wills, but I think the fundamental difference here is that the online will drafting platforms and software are generally aimed at assisting people to produce a physical document. So, you’re still going to print something out. The software, the online platforms are aimed at helping you get to that end stage that you’re still going to print out, you’re still going to have wet signatures on, versus this new legislation, which is, again, this fully electronic document that’s going to be stored electronically, and again, I think that’s the key difference between the two.

Leanne Kaufman:

What do you and some of your colleagues in British Columbia see as the advantages of this new legislation?

Peter Glowacki:

Yeah, well, again, it’s interesting. We’ll see how everything plays out. I kind of like that Section 58 of the Wills, Estates and Succession Act that we alluded to earlier. It’s kind of a wait and see how things play out, but fundamentally, I think this will help facilitate the production and execution of Wills when the physical presence of the individuals is challenging or impossible, whether it’s a distance thing or health. I mean, obviously, the pandemic facilitated or accelerated all of this, even just relative to having execution but via video recording, and I think this sort of takes it one step beyond that. For others, those who are environmentally conscious, there’s not going to, theoretically at least, be a paper record here so you’re not cutting down trees to make Wills. I think that’s sort of a byproduct of it. I think again, really, it’s the remote aspect that’s going to be the biggest advantage.

Leanne Kaufman:

And that’s something we have seen roll out across the whole country through the pandemic was the ability for at least people to witness Wills being signed using a video platform. But again, BC being the only one where that wet signature that hard copy isn’t required—surely that lack of control of a paper copy also creates some risks and concerns. What are some of the points of discussion amongst your colleagues around areas of concern with respect to this legislation?

Peter Glowacki:

Well, again, it is relatively early, and sadly, we’re still feeling the effects of the pandemic when it comes to the lawyers getting together to discuss all these issues. I think it’s really going to come down to the accessibility and the security of the storage, the potential for corruption: The potential for those who are tech savvy or maybe more savvy than the Will-maker to somehow access the document and make alterations to a document after it’s been executed or finalized. If it’s secured by a third party, is there a risk that the third-party storage facility is hacked or ransomware? It’s kind of the same as our own credit card information and making online purchases and all that type of stuff, but it’s now been elevated to deal with your actual Will. I think from my perspective, that’s probably going to be the single biggest issue that we have to deal with as we move forward.

Leanne Kaufman:

Yeah, cybersecurity of course permeating all aspects of our lives, but this just adds to the list of things to be worried about. The other thing I would think about is… well, okay, two things that come to mind for me. One is how would you assure yourself, or how would the family or the executor assure themselves that the electronic version that they find is even the last electronic version, given that they’re out in the ether? Is there something in the legislation that speaks to that?

Peter Glowacki:

Yeah, it’s a good point. When you think about the number of different devices we’re all using these days and the different places we’re storing our information and our documentation, work, personal, multiple personal devices, it’s a challenge. When an executor goes for probate, so the probate is still the requirement, even though it’s an electronic document, when the Will maker dies, you still have to obtain probate or you likely have to obtain probate, there’s a requirement that the executor swears that they have looked. It used to be that you looked in all the places where somebody might have their paper documentation, safety deposit box, the desk at home. Now you’re going to have to also indicate that you’ve made a search of places where an electronic Will might be stored. If you’ve got a non-tech savvy executor, or even somebody who’s reasonably tech savvy, being able to access the Will-maker’s, all of their electronic records, can be challenging. I expect that there’s going to be a growing need for people with that IT background to be able to assist family and executors in reviewing electronic records to make sure that there are not later or other documents. But we all know how challenging it is to find those types of individuals even in our workplaces. This could be a real challenge when it comes to these types of documents being adopted and then proven in the court on a go forward basis.

Leanne Kaufman:

Well, that was going to be the other point that I asked you about was just accessibility, because we do know that there’s so many digital assets out there that we already are worried about executors being able to access or even be made aware of given how tightly locked down some of these electronic devices can be. I think that you’re right, that’ll be something that we really need to watch and be mindful of, and something that I think will become, like you said, a new area of expertise for some digitally savvy folks.

Under the old rules, you could destroy a physical copy of an old Will if you wanted to make a new one. How about under these new rules? How does one revoke an old Will under these new rules?

Peter Glowacki:

First thing, you also used to be able to alter your old Will. You would do a codicil or something along those lines, and you could update, if you will, your old Will. You can’t do that with electronic Wills, just to point that out. You have to do a new Will, you can’t sort of do an electronic update, if you will, to the existing Will. The rules are somewhat similar, when you think about it on a fundamental basis, it’s a little bit challenging. You could do a new Will that specifically revokes the old one. So, the new electronic Will says that I revoke all previous Wills, kind of like doing a new paper Will does. You could do a declaration that’s signed, again electronically that revokes the previous documentation, or you can delete the electronic Will with the intention of revoking it. Obviously, the big question there becomes, well, how do you prove that? How do you prove that it wasn’t an accidental deletion?

Now we’ve had to deal with that accidental destruction issue when it comes to physical Wills in the past, but I think this just adds a whole new layer of challenge, if you will, to the revocation, right? We’ve all accidentally deleted our documents. It’s easy to say that wasn’t intended to revoke the document, but if there’s no record anymore of your old electronic Will, where does that leave you? It definitely poses some problems. It’s specifically addressed in the Wills, Estates and Succession Act, but I think how it plays out in the real world is going to be the challenge.

Leanne Kaufman:

What has adoption been like, either amongst clients that you see or more broadly from what you’re hearing amongst the BC population?

Peter Glowacki:

I think adoption has been slow, as far as I know, Leanne. I think that we had early and quick adoption of the—I’ll call it the video technology—the signing of documentation using Zoom calls and what have you, out of necessity, during the pandemic. It really did facilitate the continued ability for people to make these. It also even facilitated, because of distance or lockdowns or whatever, the adoption or the coming into effect of the electronic Wills, kind of came in at the tail end of the worst of the pandemic. I think if it had come in earlier on, we may have seen a more rapid adoption. So far I’m not hearing, and that doesn’t mean that it’s not happening, but I’m not hearing much in the way of adoption.

Again, it’s fairly early, but I expect that over time as we have a tech-savvy population—even our older clients have adopted the video execution—I think over time there will be adoption. At this stage, I don’t think it has been widely accepted, and it’s not popular yet, but I think it’s just a matter of time, just like online purchasing and online banking. I said at the early days I’d never do either of those things, I think it’s an inevitability, it’s just not widely adopted yet.

Leanne Kaufman:

People just need to see other people go first maybe.

Peter Glowacki:

Yes.

Leanne Kaufman:

And learn the tough lessons. What about early days lessons? Is there anything you can pass on to our listeners about what’s been learned or things that people seem to be nervous about or cautious about in the early days?

Peter Glowacki:

I think kind of like the virtual execution, it’s all going to come down to the technology, making sure when you’re doing these electronic documents, you’re still going to have to have witnessing and the like. I think it’s making sure that everybody’s up to speed on whatever the technology that’s being used for the digital or electronic Wills that it’s all working for everybody. We’ve all been on the Zoom calls where somebody’s having challenges. The same thing is going to be true for electronic or digital Wills, so making sure that that’s all up to speed in advance of execution, that the electronic signature software is working for all the parties involved. I think, again, fundamentally, it’s that storage and security after the fact, making sure that the location is secure, that it’s as free as possible from risk of data breach, from hacks, and from ransomware.

You’re not going to be looking for the cheapest way of storing it, right? This is an important document. You’re going to want to make sure that it is secure that the place that it’s being loaded can be accessed by those that it’s supposed to be accessed by, but that it is secure. Fundamentally, it’s also keeping abreast of what’s happening with technology. You do an electronic Will tomorrow, it’s not a one and done thing. It’s not like the old floppy disc type thing where the technology becomes obsolete. I think you’ve got to be–just like making sure your Will is up to date—you’ve got to make sure that the technology that you’ve used is still up to date and accessible on a go forward basis.

Leanne Kaufman:

That’s a great point. You can imagine that some people do kind of set it and forget it when it comes to their Will. If, in the early days, you could have done it on a floppy disc, and you can imagine what the challenge would be now in trying to access those or even know that they existed several decades later.

Well, thank you, Peter so much for joining us today to talk about digital Wills, some of the risks, some of the things to be wary of, and some of the conveniences, what we should know when we’re creating one, and some of the things to bear in mind and probably ask our professional advisors about too, and why all of this matters beyond wealth.

Peter Glowacki:

Thank you, Leanne. Hopefully, it’s been somewhat informative and helpful.

Leanne Kaufman:

It certainly has, and you can find out more about Peter on LinkedIn or at blg.com. Until next time, I’m Leanne Kaufman. Thanks for joining us.

Outro speaker:

Whether you are planning for your own estate, the needs of your family or business, or you are an executor for a loved one’s estate, we can help guide you, simplify the complex, and support your life’s vision. Partner with RBC Royal Trust and ensure your legacy will thrive for generations to come. Leave a legacy, not a burden™. Visit rbc.com/royaltrust.

Thank you for joining us on this episode of Matters Beyond Wealth. If you would like more information about RBC Royal Trust, please visit our website at rbc.com/royaltrust.

RBC Royal Trust refers to either or both of the Royal Trust Corporation of Canada and or The Royal Trust Company. RBC Royal Trust and RBC Wealth Management are business segments of the Royal Bank of Canada. Please visit https://www.rbc.com/legal for further information on the entities that are member companies of RBC Wealth Management. ®/™ Trademark(s) of Royal Bank of Canada. RBC and Royal Trust are registered trademarks of Royal Bank of Canada. Used under licence. © Royal Bank of Canada 2023. All rights reserved.

This podcast is provided for general information purposes only and is not intended to provide any advice or endorse or recommend any content or third parties referenced in this publication. A professional advisor should be consulted regarding your specific situation. While information presented is believed to be factual and current, its accuracy is not guaranteed and it should not be regarded as a complete analysis of the subject matter discussed.

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