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<< back to all ArticlesThe Future of Electronic Wills: Where There’s A Will, There’s A Way
It’s 2023: does my Will still have to be written on paper and signed in ink in front of two witnesses? Can I use an electronic signature? Can the two witnesses use electronic signatures? If I want to make a holograph (i.e., handwritten) Will, can I type it up instead of writing it out by hand?
If you’ve ever asked yourself these questions, you’re not alone. These are questions that estate lawyers often hear.
In Alberta, the Wills and Succession Act governs the creation of Wills, but it does not address digital or electronic Wills.
Since the legislation was passed, people have become increasingly used to doing things electronically. Most business contracts and documents can be signed electronically, as can some real estate documents. During COVID, it became increasingly hard for lawyers and clients to meet in person to comply with the strict witnessing requirements surrounding Wills. The Alberta Government implemented a temporary witnessing protocol to address this issue, which deems the witnesses and the person making the will to be in each other’s presence if they are connected virtually, and a lawyer is also involved (section 19.1 of the Wills and Succession Act). In other places in the world, Courts have been grappling with Wills contained in text messages, or videos.
In October of this year, the Alberta Law Reform Institute (“ALRI”) released a 200-page report on digital or electronic Wills. ALRI’s goal in doing so was to bring certainty and predictability to this area of the law while simultaneously embracing technological advancements and maintaining the integrity of the testamentary process (i.e., the process of making a Will).
ALRI is the official law reform agency for the province of Alberta. It provides independent advice to the Alberta Government to ensure that the laws of Alberta are kept up to date. In its most recent report (Creation of Electronic Wills, Final Report 119), ALRI outlines 19 recommendations regarding the Wills and Succession Act. As a part of these recommendations, ALRI concluded that electronic Wills should be expressly permitted in Alberta.
In particular, ALRI recommends that electronic Wills should be:
- Readable as electronic text,
- Signed by the testator (i.e., the individual who makes a Will), using an electronic signature, and,
- Signed by two witnesses, who are both present at the same time, using an electronic signature.[1]
ALRI did not explicitly outline in its report where people should be physically located when an electronic Will is signed. However, ALRI did recommend that the Wills and Succession Act should continue to permit remote witnessing protocols on a permanent basis, rather than having section 19.1 expire on August 15, 2024, as it is currently set to do.
In coming to its recommendations, ALRI canvassed arguments for and against electronic Wills by conducting consultations with the public and estate planning professionals across Alberta.
One argument in favour of permitting electronic Wills in Alberta is that both British Columbia and Saskatchewan are in the process of allowing these types of Wills. Proponents of electronic Wills, therefore, suggest that similar legislation will inevitably be considered and adopted by the rest of Canada, and Alberta should be a part of this movement.
Other arguments in favour of permitting electronic Wills include the following:
- Much of our personal and professional life is already conducted online, so permitting electronic Wills in Alberta will reflect the reality of everyday life;
- Many people mistakenly believe that electronic Wills are already valid (but this is not explicitly set out in the Wills and Succession Act), so permitting them will meet society’s expectations; and
- It’s a question of convenience – in other words, the availability of an electronic format might encourage more people to make a Will.
By contrast, one argument against permitting electronic Wills in Alberta is that they are unnecessary. Paper and holograph (i.e., handwritten) Wills already exist.
Another argument against permitting electronic Wills is a concern about their authenticity and reliability. Opponents argue that electronic signatures carry a potential for fraud and that there is a heightened risk that someone could be influencing the person making the Will behind the screen. In addition, there are questions as to an electronic Will’s durability and accessibility, given rapid technological changes and the obsolescence of older tech.
While the above arguments against electronic Wills are valid, ALRI notes that many of these issues exist with paper wills already. Witnesses are currently relied on to ensure that a signature is genuine – if electronic Wills also require witnesses, this concern may be eased. In addition, while accessing information from old technology may pose a problem in the future, paper Wills are also at risk of getting misplaced, burning up, or even moulding. There is no guarantee that a paper Will is easily reviewable when the time comes.
Ultimately, ALRI concluded that the arguments in favour of permitting electronic Wills in Alberta outweighed the arguments against it, and proceeded to recommend the Alberta laws evolve to allow these types of documents.
It is important to remember that ALRI’s recommendations are not binding on the Government of Alberta or the Courts. As it stands, the Wills and Succession Act does not specifically permit or prohibit electronic or digital Wills in Alberta. However, ALRI’s report, along with developments being made in other Canadian provinces, suggests change may be on the horizon.
If you or someone you know has any questions related to Wills or estate planning, please contact our office.
[1] Alberta Law Reform Institute, “Creation of Electronic Wills, Final Report 119” (10 October 2023)
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
