Last year I read Middlemarch by George Eliot. The story, set in the 1820s, follows the inhabitants of a small English town and, to my surprise, estate planning drives much of the plot. Characters have competing wills and scandalous codicils are discovered.
I was struck by how little has changed in the last two hundred years. Wills and codicils are still physical documents, signed by the testator and put away for safekeeping. The terminology and execution formalities have barely changed. But with so many of us living our lives online, does it make sense to rely on pen and paper? Nearly every other aspect of our lives makes use of technology. We bank online. We sign binding agreements with digital signatures. And due to COVID-19, many of us now work from home.
In my view, electronic wills are a huge opportunity to modernize wills and estates. But we have to sweat the details.
Allowing electronic wills could improve access to justice by empowering lawyers to reach remote communities with technology. Law firms could avoid spending thousands of dollars on fireproof will vaults. But electronic wills also raise legitimate concerns. Which electronic copy is the actual will? How does a testator revoke an electronic document? How do we prevent fraud?
These questions can be addressed with sensible legislation. Florida adopted electronic wills on January 1, 2020. Their legislation states that electronic wills must be stored with a Qualified Custodian to be valid. The legislation defines a Qualified Custodian as a regulated service provider with proper security, record keeping, and fraud-prevention measures. This framework is a model for other jurisdictions.
Requiring electronic wills to be stored with a secure, cloud-based service is the best way to ensure that proper records are kept, data is secure and backed up, and estate planning documents can be found when they’re needed. These protections go beyond the safeguards that paper wills currently offer.
In Canada, COVID-19 accelerated the move towards electronic wills. Many provinces introduced emergency measures that allowed remote signing and remote witnessing to eliminate the need for risky in-person visits. But these measures have been criticized for being clunky and for requiring more paper, not less. British Columbia became the first province to allow fully electronic wills when it passed the Wills, Estates and Succession Amendment Act, 2020 last summer. Many of the details will be covered by as-of-yet unreleased regulations.
Cloud-based electronic wills are an opportunity to improve on the status quo and ensure that more Canadians do proper estate planning. It’s up to us in the legal profession to come together and get the details right.
Patrick presented a session on cloud-based wills at LESA’s Alberta Legal Technology Conference on June 3, 2021. Click here for the on-demand program and discuss the idea of digital, cloud-based wills. Consider the rules in Canada and abroad and how a digital wills framework needs to address privacy, security, and the data retention needs of testators.