Room for improvement includes digital wills, protection for common-law partners in intestacy cases
Ontario is on the right track with the Accelerating Access to Justice Act, but has further to go to modernize estates law, say two co-founders of digital estate planning platforms.
Though the legislation allows for the remote witnessing of wills and powers of attorney, the document must be printed and physically signed with wet ink. The Act stopped short of permitting completely digital wills, as British Columbia has recently done. Passed in July 2020, but not yet in force, B.C.’s Bill 21, the Wills, Estates and Succession Amendment Act, allows for a valid will to exist entirely in digital form, signed by an e-signature program such as DocuSign.
Arin Klug, co-founder of Epilogue, and Erin Bury, CEO and co-founder of Willful, both say that when it comes to whether electronic wills will be allowed in Ontario it is not a matter of “if” but of “when.”
“In B.C., we saw Bill 21 passed last summer… that will allow for completely digital wills – electronic signatures, virtual witnessing, online storage of wills,” says Bury. “And that follows in the footsteps of many U.S. states that have gone completely digital.”
“I was very hopeful that the AG would be a thought leader and implement true digital will legislation, similar to Bill 21 in B.C.… So I think it's really a failure to address the need for access to justice in a digital world.”
In remote witnessing, at least one of the witnesses has to be a Law Society of Ontario licensed lawyer or paralegal, says Klug. “My question is whether that's an important requirement.”
The province must weigh the benefits of having a lawyer or paralegal involved in the remote signing, against the barrier that places in front of people who want to make a will but cannot afford a lawyer, he says.
But Klug adds that introducing e-wills requires the government to consider several factors: How is it signed? How can a person’s identity be authenticated? How does witnessing happen? How will it be stored? How will it be changed if the testator wants to update it? How is the will revoked?
B.C.’s legislation fails to consider these elements, lacks nuance and seems to have been rushed, he says.
“The Ontario government is doing the right thing by not rushing into it,” says Klug. “… At the same time, I think it's something we need to be moving towards.”
“We have examples of how this is working elsewhere. We have the opportunity to examine those other jurisdictions, see what's working and what's not working and craft something that we think takes the best elements of what everyone else is doing.”
Ministry of the Attorney General press secretary Natasha Krstajic told Canadian Lawyer that permanent electronic wills were not included in the Accelerating Access to Justice Act due to stakeholder feedback. But the Ministry is open to further consideration and consultation on the issue, she says.
“The Ministry of the Attorney General consulted widely on this change and other estates amendments to address feedback we received during consultation with the legal profession, including members of the Estates Bar.”
“The Law Society of Ontario has developed best practices for virtual witnessing, and we expect the Law Society of Ontario will continue to provide guidance on this matter to the legal profession,” says Krstajic. “We look forward to continuing to provide increased flexibility and ease of access to Ontarians through COVID-19 and beyond.”
In April 2020, Ontario brought into force an emergency order to allow for virtual witnessing of wills and powers of attorney. Using videoconferencing, estates lawyers and their clients executed wills and powers of attorney via the circulation method and the counterpart method.
With the circulation method, the testator would sign the document in view of the witnesses, then courier the will to the witnesses who would each sign it during subsequent videoconferences with all present. The counterpart method requires only one videoconference, and each party signs an identical copy of the document.
One year later, the Accelerating Access to Justice Act received Royal Assent. The legislation allowed for the virtual signing and witnessing of wills and powers of attorney, but required the process be contemporaneous. The counterpart method is now permitted, but not the circulation method.
In a letter to stakeholders, Attorney General of Ontario Doug Downey said the contemporaneity requirement was in response to concerns about ensuring the validity of wills and powers of attorney executed virtually.
“When our government introduced that Act, we set out to simplify a complex and outdated justice system and make it easier for people to resolve their legal matters. We also sought to assist and protect vulnerable Ontarians,” said Downey.
In the Accelerating Access to Justice Act, Klug says he also expected to also see changes to the Succession Law Reform Act to recognize common-law partners. Ontario is “out of step” with other provinces, in that when someone in a common-law partnership dies without a will, there is no automatic entitlement for that partner in the intestacy rules. Manitoba, Saskatchewan, B.C. and Prince Edward Island recognize common-law partnerships in intestacy cases, he says.
“They all have these concepts that recognize the reality… that families come in all shapes and sizes these days.”