Tax & Estate Planning

The Modernization of the Estate Planning Process?

Tax & Estate Planning

The Modernization of the Estate Planning Process?

A Discussion of Recent Changes in BC and Alberta

Remote Signings Officially Possible in Alberta

Back in May, we excitedly announced that Wills, Enduring Powers of Attorney, and Personal Directives could be validly signed and witnessed via video conference in Alberta. While that was technically true, it became immediately clear that further guidance would be required in order to make the process workable. The initial language allowed witnessing to occur virtually, but it did not specify that each witness could sign a separate but identical version of each page of a Will (i.e. it did not allow counterpart signature pages). The rationale behind virtual signings seemed to be defeated by a requirement for wet-ink signatures of both witnesses and the testator on the same physical page.

This issue was rectified last week by Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act (Alberta), which came into force on June 26, 2020. Certain portions of the Bill take effect earlier than June 26, including the portion which allows remote-witnessed Wills to be signed in counterpart, which is effective as of the date of the original Ministerial Order (May 15, 2020).

The adjustment allows for safe, physically-distanced estate planning as the COVID-19 pandemic continues and provides additional flexibility and convenience for clients. However, there are certainly many circumstances outside of a pandemic where such flexibility would be desired by clients. If remote signings are working during this time, perhaps we should consider keeping the option available in Alberta going forward?

British Columbia Takes It Two Steps Further

During the same week (in fact four days prior on June 22, 2020), the Wills, Estates and Succession Amendment Act, 2020 (British Columbia) had its first reading. With this Bill, the government is proposing to:

  • make the remote witnessing of Wills a permanent option; and
  • allow the Courts to accept Wills for probate that are created on a computer and signed electronically (with no printed copy).

We note that, thus far, these changes would only apply to Wills and not yet to Powers of Attorney.

As the government addressed in its June 22, 2020 news release, the first proposed change would provide significantly increased flexibility to British Columbians, both during the pandemic and beyond. This change will increase access to justice (in the estate planning context) in the long term for a broad range of people who may have had difficulty attending a lawyer’s office for any number of reasons, including but not limited to, business owners, frequent travellers, parents of young children, persons with disabilities, or those who live in rural or remote communities.

The second amendment would be the more dramatic one. Although now acceptable in certain jurisdictions outside of Canada, allowing the use of electronic Wills remains highly controversial (although, I acknowledge that perhaps the controversy is less dramatic outside of estate planning circles). Some argue that the potential for fraud is too high. But notably, we allow most other legal documents to be signed electronically these days. Allowing electronic signatures would not remove the witnessing requirement. Shouldn’t the potential for fraud be mitigated if a lawyer or notary acts as one of the virtual witnesses? And even more so if the client feels comfortable with the process being recorded? Many of the same risks exist in person as well and we have found ways to adequately address them in that context. While the apprehension is certainly valid, we should also be apprehensive about the impact on our profession if we fail to adopt innovations. Though this idea may be divisive today, best practices are always evolving.

It is worth noting that this change may be less dramatic in the current British Columbia framework than if a similar change was made in Alberta. Courts in British Columbia have broader rectification powers than Alberta Courts (see my previous post for additional information about Alberta Will requirements) and they already have the power, under section 58 of the Wills, Estates and Succession Act (British Columbia), to find that a document stored electronically that contains clear testamentary intentions be treated as a Will.

We will be anxiously anticipating further commentary and guidance on these potential changes. It will be very interesting to see if British Columbia starts a trend of the modernization of the Canadian estate planning process.

Whether you reside in Alberta or British Columbia, our Estates and Trust team at Nerland Lindsey LLP would be pleased to guide you through the estate planning process. Our team consists of both Alberta and British Columbia lawyers. If you would like to discuss this article in greater detail, or would like assistance with any estate planning matter, please contact Catie Attwood at (403) 984-0378 or cattwood@nerlandlindsey.com.

Disclaimer:

Please note that the foregoing is information for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.

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