Electronic Signatures for Legal Documents
Both the federal and provincial governments have enacted legislation that recognizes electronic signatures (“e-signatures”) and, accordingly, many documents can and are effectively executed by e-signatures every day. However, some documents cannot be legally executed by e-signature. So how can you be sure that your signature will create a binding, legal document?
In British Columbia, the Electronic Transactions Act, SBC 2001, c.10, provides authority for documents to be signed and executed by e-signatures. The Electronic Transactions Act specifies that if there is a document which requires the signature of a person, that requirement may be satisfied by electronic signature (section 11).
However, until very recently, e-signatures were not allowed to be used for wills, powers of attorney, or land title documents that transfer or create interests in land. These documents typically must be witnessed in person by a lawyer or notary.
The legal landscape has been forced to adapt in the face of the practical difficulties and safety concerns of in-person witnessing which arose as a result of COVID-19; both land titles documents and wills now have remote witnessing possibilities which did not exist before the global pandemic.
In March 2020, Ministerial Order M162 was passed under the Emergency Programs Act, R.S.B.C. 1996, c.111, and created the ability to sign a will in the “electronic presence” of a witness meaning, signatures on traditional, paper wills may be witnessed by videoconference in counter-part. Signing in someone’s “electronic presence” means “circumstances in which two or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location” (section 35.1 of the Wills, Estates and Succession Act). Real time video conference platforms such Zoom, Microsoft Teams, and FaceTime are often used to create this electronic presence.
On August 14, 2020, Bill 21, the Wills, Estates and Succession Amendment Act, received Royal Assent, which permanently incorporates the concept of electronic presence into the Wills, Estates and Succession Act. Bill 21 also allows for the creation and execution of wills which do not exist in paper form and have their only existence in electronic form. There are still many lingering questions about the creation of electronic wills. Will all parties need to share their screen to witness one another’s e-signature? Is clicking a box treated equally to inputting one’s initials? E-signature platform providers and lawyers alike are hopeful that the Province will provide some practice guidelines to navigate this brave new world of online wills.
Bill 21 and its introduction of electronic signatures does not change many of the other formalities required by the Wills, Estate and Succession Act, such as the need to sign the will at the end by the will-maker and the responsibility of the lawyer preparing the will to ensure that the will-maker meets the test for legal capacity. Accordingly, the introduction of e-signatures to wills may very well make the formal execution of wills simpler, but does not obviate the need for serious consideration of the terms of the will.
Creating a valid, legal, effective will requires considering a plethora of subject-matter – from undue influence, to wills variation claims, to tax planning. Receiving proper legal advice on the creation of your will is one of the best ways you can ensure that your wishes are carried out after your death and that your loved ones will be provided for. Our estate-planning lawyers would be happy to assist you in meeting these goals.
© Linley Welwood LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.