Electronic Wills: The Time Has Come in Ontario
Hannah Lank, 3L, Volume 80 Senior Forum Editor
Pop culture and law converged on Instagram this past summer when singer Lana Del Rey posted a picture on her Instagram of rapper Anderson .Paak’s tattoo. The tattoo reads, all in capital letters: “When I’m gone please don’t release any posthumous albums or songs with my name attached. Those were just demos and never intended to be heard by the public”. Lana Del Rey’s caption under the picture read: “it’s in my will but it’s also on his tattoo.”
The question of whether a tattoo can constitute a will may seem a bit farfetched, but it is not outside of the realm of imagination. If a tattoo is done in the individual’s own handwriting, and includes their signature at the end, perhaps it could constitute a valid challenge to the interpretation of a holograph will – a will that is handwritten and signed by the testator, the person drafting the will. A famous example of a valid holograph will occurred in Saskatchewan in 1948, when a farmer etched his last will and testament into the side of his tractor as he lay pinned underneath it. It read simply: “In case I die in this mess I leave all to the wife. Cecil Geo Harris.” Yet, Ontario law is far from even considering a tattoo as a testamentary instrument; in fact, there is no Ontario case law suggesting that even an electronic document typed on the testator’s computer might constitute a valid will.
Holograph wills and the example of the farmer in Saskatchewan may seem somewhat archaic in today’s world where handwriting is rare. What if the modern farmer, trapped under his tractor, took out his phone to type his will as a text, or as a virtual note? Would this document constitute a valid testamentary instrument indicative of the last will and testament of the testator?
This blog post explores the exclusion of electronic wills in Ontario by considering the government’s reluctance to permit electronic documents as valid testamentary instruments. The fears animating the permissibility of electronic wills – fraud, abuse, and lack of meaningful consent – are not convincing. The permissibility of using electronic wills in other jurisdictions demonstrates that those fears are overblown. Ontario courts should allow electronic wills, so long as the judge is satisfied of the document’s reliability. No testator should be punished for recording their testamentary intentions electronically in a safe and reliable format. This approach is desirable because it ensures that testamentary intentions of the deceased are respected.
Current State of the Law in Ontario
The law in Ontario currently states that any typewritten will must be signed by the person adopting the will (the testator) and witnessed by two witnesses who were present when the testator signed. Ontario is a strict compliance jurisdiction, which means that courts have no discretion to validate a will if that will does not comply with the formal requirements of the Succession Law Reform Act (“SLRA”) (see Zerbinati v Zerbinati, 2013 ONSC 7630 (CanLII)).
There is no case law to suggest that Ontario courts will declare a typed will signed only by the testator as a valid will under the SLRA. As clarified by the court in Re Dixon-Marsden Estate [1985] OJ No 1766, 21 ETA 216 (Quicklaw) (Dixon-Marsden) [1], a holograph will cannot be typed (Dixon-Marsden at para 23). What is the rationale for this rule? In Facey v Smith [1997] OJ No 1858, 17 ETR (2d) 72 (Quicklaw) (Facey) [2], the Court explained that the purpose of requiring a holograph will to be handwritten and not typed is “to ensure the authenticity of a Will because handwriting generally contains distinctive characteristics that prove the identity of the writer. Typewriting lacks that identifying personal distinctiveness" (Facey at para 13). In other words, the reason holograph wills must be handwritten is due to concerns of fraud. The implicit assumption is that handwriting is a more authentic writing form, one that allows the court to discern the true identity of the author.
Is it reasonable for Ontario to require that a holograph will must be entirely handwritten by the testator? Not particularly. The concern that typewriting lacks personal distinctiveness is no longer entirely true, as electronic data records and privacy and security features can allow a court to glean a certain level of confidence with regards to the authenticity of a typewritten will. Typewritten wills have moved far beyond the anonymity of the typewriter. Ontario would also not be alone in allowing electronic documents to constitute wills; both in Canada and in other international common law jurisdictions, courts have held that electronic documents can constitute valid wills in certain circumstances.
Electronic Wills in Other Jurisdictions
Courts or legislators could rely on precedent from other Canadian courts and legislatures to declare electronic wills valid. In Re Hubschi Estate 2019 BCSC 2040 (CanLII) (Hubschi), a British Columbia court addressed whether a document found on the computer of the deceased titled “Budget 2017” which expressed an intention to prepare a will, explained how to divide his assets, and listed options for an executor (Hubschi at para 15) was valid. The document was typed and unsigned.
Unlike Ontario, British Columbia’s governing statutory scheme allows for wills to be cured. Under s. 58 of British Columbia’s Wills, Estates and Succession Act, the B.C. court can “cure” a record that does not comply with the Act where the record represents the deliberate or fixed and final expression of the deceased’s testamentary wishes. S. 58 defines a “record” as data that: (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of reproduction in a visible form. This provision allowed the Court to hold that the typed document was a valid will because it constituted a “record” as defined by the Act and was held to be the testamentary intention of the deceased. The absence of a signature can be “cured” under s. 58. Ontario’s SLRA has no similar curing provision. Until the legislation is updated, it is challenging – if not impossible - to imagine a similar document being declared as a valid will in Ontario.
There is no evidence suggesting that British Columbia’s curing provision has increased fraud or made testamentary documents less secure. “Curing” a record requires the document to go through the scrutiny of a court, subject to challenge by those who may raise concerns if they do not believe that the record is authentic. As demonstrated in Re Hubschi Estate, this is a rigorous process. As more cases come forward in British Columbia regarding electronic wills, general confidence may increase that electronic documents are indeed capable of proving valid, authentic testamentary instruments.
While British Columbia isn’t the only jurisdiction in Canada with a curing provision, it may be the only jurisdiction where an electronic document has been held to constitute a valid will – so far. Internationally, there is some emerging case law where electronic documents have been deemed valid wills. In the Australian case of Yazbek v Yazbek & Anor [2012] NSWSC 594 (Yazbek), the New South Wales Supreme Court held that an electronic document “Will.doc” found on the deceased’s computer was a valid will, even though it did not have a signature (Yazbek at para 113). Instead, the deceased had typed out his name at the end of Will.doc (Yazbek at para 116). Like in B.C., New South Wales’s Succession Act allows the court to dispense with the formal requirements for the execution of a will where the court is satisfied that the person intended the document to form their will. The Interpretation Act defines “document” as “anything from which sounds, images or writings can be reproduced with or without the aid of anything else.”
Similarly, in In the Estate of Robin Michael (Deceased) [2016] SASC 164 (Robin Michael), the Australian court in South Australia held that a computer document with an e-signature was a valid will. The Court found that the e-signature was affixed to the document by the deceased as his signature and that he did so with the intention of giving effect to the document as his will (Robin Michael at para 34). However, it is important to note that the legislation in South Australia has a curing provision (s. 8 of the Wills Act) and that there is no concept of a holograph will in South Australia, unlike in Ontario.
Electronic Documents Should Constitute Valid Holograph Wills in Some Circumstances
The reasoning provided by the Ontario Court in Facey is no longer airtight. We have moved far beyond “typewritten” as meaning ‘created on a typewriter,’ a device with no data record or security features. With enhanced security and privacy features on laptops, desktop computers and phones, it is possible to know when a document was created and when it was last edited. Depending on the security features of an individual’s electronic devices, it may be the case that some documents are passcode protected, and therefore could only have been created and edited by the person(s) with the passcode. These are distinctive characteristics that strengthen the credibility of an electronic document.
Until electronic holograph wills are examined by Ontario courts, there is little reason to believe that they are inherently any less reliable or credible than handwritten holograph wills. In fact, typewritten holograph wills may be more credible because of the enhanced security features on many electronic devices. As with handwritten holograph wills, the concern remains that an individual may be coerced or pressured by a third-party to draft and sign a holograph will and that the external duress will remain invisible to the courts upon the testator’s death. However, even with this concern, handwritten holograph wills are accepted as valid testamentary instruments.
The other concern that remains with electronic wills is that the document may have been created by someone other than the testator and therefore that fraud will occur. This is a serious concern and must be considered by legislators and courts when dealing with electronic wills. However, the same concern exists with handwritten holograph wills; a fraudster may impersonate an individual’s handwriting to the best of their ability. There are many strategies that can be employed to mitigate this concern. Just as a handwritten holograph will found at the home of a testator’s distant friend would give rise to suspicion, so too would an electronic will found on a different computer than the testator’s, or an electronic document that indicates it has been edited after the testator’s death. While electronic wills may require courts to have a more in-depth understanding of electronic data and security and privacy features, this should not dissuade legislators from expanding the definition of holograph wills to include electronic documents. Electronic documents are so heavily integrated into the lives of most people that it is high time courts also come to recognize the ways in which people may use electronic documents to arrange their affairs.
If an Ontario court examines an electronic will with the same rigour as a handwritten will and is satisfied that the electronic document constitutes the true and honest testamentary intentions of the deceased, there is no reason not to allow such a document to constitute a valid will. It is important to encourage people to consider their testamentary intentions and to aid them in executing those intentions. This may ease the strain on the court system that can occur when individuals die without any testamentary instruments, and it also encourages individual autonomy. In Ontario, all individuals have the right to dictate how they want their assets distributed upon their death, subject to some limitations; the courts should aid in the execution of this right, not impede it by dismissing electronic documents that may very well constitute the honest testamentary intentions of the deceased.
Conclusion
If you live in Ontario, you should not expect that an electronic document you prepare without the assistance of a lawyer will constitute a valid will. Until there is an update to Ontario’s SLRA, only those documents that comply with the formal requirements stipulated will be held to be valid wills.
[1] For a public summary of the decision, see Ian Hull, “Using a Holograph Will to Validate an Unsigned Will? Desperate Times Call for Desperate Measures”.
[2] For a public summary of the decision, see Joanne Golden and Jennifer Katz, “Holographic Wills and the Doctrine of Incorporation by Reference” at 5-6.