In the current age of technology, many documents are created, signed, and stored electronically. One of the exceptions has always been Wills, which were required to be in paper form and signed with wet ink. In addition, Wills needed to be either in the sole handwriting of the testator, or signed by the testator in the physical presence of two witnesses.
However, on May 27, 2023, the Government of Saskatchewan passed legislation titled The Wills Amendment Act, 2022, which will enable the creation and storage of electronic Wills, as well as the use of electronic signatures and remote witnessing. This legislation is not yet in force – there was originally talk of it coming into force this fall – but the legislation’s passing now telegraphs the incoming requirements for creating a valid electronic Will in Saskatchewan. The legislation does not replace the validity of paper Wills or the need to get prudent legal advice with respect to an estate plan. Instead, it simply adds another tool to the estate planning toolbox.
The Wills Amendment Act, 2022 sets out the criteria that must be met for an electronic Will to be valid in Saskatchewan. An electronic Will must be:
- In electronic form;
- Signed by the testator with the electronic signature of the testator, or signed by another individual in the testator’s presence and at the testator’s direction, with the electronic signature of that individual;
- Witnessed by two individuals in the presence of the testator at the same time, who either sign the Will or attach their electronic signatures to the Will; and,
- Meet all other requirements that may be prescribed in the regulations. Note that the accompanying regulations have yet to be created – more on that below.
Although the new legislation will bring about many changes, the capacity requirements for executing a will remain the same – as with a paper Will, a person creating an electronic Will must be over 18 and of sound mind. For more information on the capacity requirements for making a Will, view our recent article on the topic here.
While electronic Wills may be new to Saskatchewan, they have been recognized in British Columbia as valid since December 1, 2021. Since then, lawyers in British Columbia have cited many upsides – electronic Wills provide a practical solution to those who may have difficulty signing in person, such as individuals who are living abroad or confined to care homes. Electronic Wills have the added bonus of being much more environmentally friendly than paper Wills, which often require stacks of printer paper.
However, risks associated electronic Wills have also been brought to light. With electronic data, there are concerns that a file could be deleted or corrupted, or be the target of a data breach. There are also questions regarding how difficult it may be for an executor to retrieve a Will from an electronic repository, or conversely, how easy it may be for an uninvited person to gain access. Revocation of an electronic Will may be harder to prove without record of the destruction of the Will, which is much clearer when the Will has a physical form. There are also concerns that a digital format may make it easier for a person to fraudulently alter another person’s Will.
To protect against fraudulent creation or variation of electronic Wills, there have been recommendations made that the government implement, as a starting point, that one of the two witnesses must be a licensed lawyer. Additionally, the legislation is software neutral, but there have been recommendations that PDF will be the document of choice. Time will tell for each of these.
Any time legislation undergoes a major change, there are many questions regarding its implementation. Before The Wills Amendment Act, 2022 comes into force in Saskatchewan, the Saskatchewan Government will need to create an accompanying set of regulations and make the corresponding changes to the Rules of Court. This will give further detail to the changes and facilitate the use of electronic Wills in Saskatchewan.
It is clear that once The Wills Amendment Act, 2022 comes into force, it will have an impact on Wills and Estates law and procedure. The lawyers at Lakefield LLP will be closely monitoring the progression of this impactful legislation. Meanwhile, contact our Estate Planning team if you are interested in discussing your estate plan.
The information in this article does not constitute legal advice. The law may have changed since this article was first published. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.