October 4-10, 2020 is Make A Will Week in British Columbia! To celebrate, we’re giving you the inside scoop on everything you need to know about B.C.’s Bill 21.
British Columbia has seen lots of changes in the estate planning space over the last year. In the spring, the B.C. government implemented emergency measures allowing for the virtual witnessing of wills as a result of the COVID-19 pandemic. B.C. is also the first province to approve digital will legislation.
When Bill 21 comes into effect, B.C. residents will be able to sign, witness, and store their wills completely online. British Columbia will be the first Canadian province to allow for a completely digital estate planning process!
What does the law say today about making a will in B.C.?
Currently in B.C., along with all other Canadian provinces, estate planning is very much an offline process. In British Columbia, legislation around estate planning is governed by the Wills, Estates, & Succession Act, passed in 2009.
In British Columbia a will is legally valid if it is:
- Created by you (no, you cannot create a will for someone else!) in sound mind (you must have the capacity to make a will)
- Signed by you with wet ink in the presence of two witnesses,
- Two witnesses sign the document with wet ink in your presence (Your witnesses cannot be beneficiaries of your will or their spouses)
- A paper copy stored as a physical and original copy offline
Currently, under the Wills, Estates, & Succession Act, you cannot sign or store your will online, despite an overwhelming majority of residents who believe it is already legal.
British Columbia also has a provincial will registry through the Vital Statistics Agency. The only other province that offers a will registry is Quebec. Registering your will does not actually store the physical document - it simply registers the existence of the will so it is easier for your loved ones to locate your wishes after you pass away. There is a fee to register your will. There is also the optional option to register your will through the consumer will registry at CanadaWillRegistry.org (Willful customers get free will registration, valued at $40).
How has COVID-19 affected the current process?
There were many barriers to making a legally-valid will pre-COVID-19, including cost, convenience, and even procrastination. However, the pandemic has highlighted how the limitations of offline processes make it exponentially more difficult.
Some of the challenges highlighted by COVID-19 include:
- Printing: Using most online will services require the use of a printer. With physical distancing measures in place, many Canadians lost access to printers and were unable to print their documents at home. (To help alleviate this issue, Willful began offering customers a printing and shipping service).
- Accessibility: Canadians who would have benefited from legal advice were unable to visit a lawyer in person to complete their wills.
- Witnesses: Physical distancing and gathering limits made it difficult to meet with their witnesses in person to facilitate the signing of their wills, especially since most folks limited their bubbles to close family members who happened to be named in the will. As such, most Canadians would have had to break their social bubbles in order to meet with an eligible witness.
What steps has British Columbia taken to address these challenges?
B.C. has been the most proactive province in terms of addressing the limitations that were highlighted due to the pandemic, including being one of the first provinces to implement virtual witnessing.
Virtual witnessing allowed will-makers to have the signature of their will witnessed via Zoom or other video-conferencing platforms, instead of meeting in person. While a fantastic step in the right direction, virtual witnessing still provided limitations that made the process difficult and confusing. For example, each party still has to sign a physical copy of the will in wet ink. As a result, the will-maker needed to mail around their copy of the will to be signed, or store multiple copies of the document.
Virtual witnessing was a temporary measure allowed under emergency orders, which meant once emergency orders were lifted, witnessing would have returned to the traditional offline process.
In June of 2020, the government of B.C introduced Bill 21. The bill will make virtual witnessing permanent and allow for electronic signatures and online storage of wills.
What is Bill 21?
Bill 21 will amend the current legislation to allow for:
- Electronic signing of wills: The legislation will introduce the ability to sign the document online using a platform like DocuSign instead of signing on paper with ink
- Virtual witnessing over a video platform: B.C. residents will permanently be able to to meet with witnesses on a video platform like Zoom vs. meeting witnesses in person
- Digital and online storage of wills: You will have the ability to store a digital file instead of keeping a physical copy of the will
- Digital revocation of a will: The new legislation outlines how you can update a digital will and revoke a previous version
The bill will amend the current legislation, making these changes permanent rather than part of the COVID emergency order.
Bill 21 received Royal Assent in August and is expected to come into effect in late 2020 or early 2021. Willful will be keeping B.C. residents updated on the progress here.
What does this mean for B.C. residents when it comes into effect?
Bill 21 doesn’t change the basic requirements to make a will legal - it still has to be created by you in sound mind, and signed by you in the presence of two witnesses who also sign the document.
While these basic rules don’t change, you will be able to do all those things online.
Storing your documents online will make it much easier for you to share them with your family and executor. This will help significantly cut down on lost or destroyed wills. Don’t forget that you don’t have to complete the process online! If you’re more comfortable signing a paper copy and storing the physical version, you will still have that option after Bill 21 comes into effect.
Process for online signing under Bill 21:
The government of B.C. has yet to release specific guidelines or best practices surrounding Bill 21. In other provinces like Quebec, there are strict guidelines around which platforms are allowed, but at this time, the legislation does not specifically dictate which platforms have to be used for video witnessing and digital signatures.
Here is a proposed process for an individual who wishes to sign/store a will under Bill 21 (though this may change depending on further guidelines from the BC government):
- Create a will using an online platform like Willful, or with a lawyer
- Once the digital file is ready, load the document into a digital signature platform like Docusign and send to all parties (witnesses and will-maker) for signature
- The will-maker and witnesses get on a video conference. The witnesses are not meant to assess capacity, rather they are there to confirm the identity of the will-maker
- While on the video conference, the will-maker and the witnesses go through the electronic signing process together in each other’s virtual presence
- Once all digital signatures are complete, the video call can be ended (the legislation doesn’t specifically require it to be recorded, but it can be)
- Store the digital file in the cloud or on your computer hard drive
- Share the file with your executor if you want them to have access immediately. Otherwise, provide them with information on how to access the documents in the event of your passing
- Register and/or store the will with either the provincial registry or with CanadaWillRegistry.org for an added layer of security
Process for revoking a digital will:
With a physical copy of a will, revoking it is as simple as destroying it or executing a new will that revokes the previous version. The same is true for online wills - Bill 21 says that for an electronic copy to be revoked, the will-maker simply deletes the file with the intention of revoking it. It specifically outlines that inadvertently deleting the file does not mean a will is revoked - there has to be the intention to revoke.
What are the benefits of digital wills?
Okay, I got it - digital wills will be a thing in B.C. soon. Why should I be excited about it?
- Accessibility: The digital will-making process will help residents in rural areas, those with disabilities, seniors, or others who have mobility issues. The updated process will allow them to finish their will start-to-finish from their mobile device or computer.
- Ease of completion: No printed copies mean the process can easily be completed online.
- Increased security: Electronic signatures come with audit trails and other security measures that can help to confirm identity.
- Reduction in lost wills: It’s very common for wills to get lost or destroyed. Storing wills online will make locating the will easier.
- Physically distanced process: With the uncertainty of COVID-19, physical distancing will be part of our lives for the foreseeable future. The digital process will help cut down on in-person meetings until it is safe to do so!
- We live in a digital world: You can complete many processes online, including buying a house! It’s about time wills caught up with technology.
- Environmental benefit: Millions of pages of paper have been printed in order to facilitate creating and updating wills. We can save trees by going paperless
Are there any downsides to digital wills?
B.C.’s Bill 21 is a big step forward for Canadians - making it easier, more accessible, and more affordable to create a will. However, there are some valid concerns surrounding security and fraud.
Estate planning documents contain sensitive information. It’s extremely important for anyone storing estate planning documents online to ensure the files are secure. Platforms like CanadaWillRegistry.org are undergoing rigorous security improvements to ensure documents will be secure.
Fraud and undue influence is a concern in general with wills. While this is a concern with online wills, it’s just as true with offline wills. Forged signatures are much easier offline, so we believe the transition to online wills will help reduce fraud.
While there are challenges to work through, it’s up to leaders in the digital estate planning space (like Willful) to build processes and guidelines that make the process as secure as possible and mitigate concerns surrounding fraud and undue influence. Willful is committed to ensuring the highest of standards to help B.C. residents safely sign and store their wills online.
And there you have it - everything you need to know (so far) about B.C.’s Bill 21. Willful’s goal is to ensure that every Canadian has a will and truly believes that Bill 21 is a step towards accomplishing this mission. Stay tuned here for further updates on Bill 21.