COVID-19 has drastically changed the way Canadians work and live, and it’s caused an even greater shift towards e-commerce spending and adoption of digital products and processes. Canadians are either social distancing or quarantining, and don’t have the desire or ability to make in-person appointments or shop in-store – and that shift to digital has highlighted the need for change in the laws and regulations in industries that still rely on pen and paper to get things done.
In 2020, you can buy a house online, and take care of pretty much any process through digital tools – but there are some notable exceptions that have been highlighted due to COVID, and that are forcing change. The CRA, for example, outlined in the Economic Response Plan that they will recognize digital signatures as having met the signature requirements of the Income Tax Act, specifically on the T183 or T183CORP forms, which typically require a wet signature.
One area that still relies on exclusively wet signatures is wills and estates. In Canada, for a will or Power of Attorney document to be legally-valid, it must be printed, signed with a wet signature, and witnessed by two people who also sign the original copy. Each province has a different set of regulations governing wills and estates law, and no province currently allows any sort of digital signature or digital storage of documents.
This has proven to be a big hurdle for Canadians looking to get these documents completed during COVID – at Willful, we’ve seen a marked increase in traffic since mid-March, and one of the biggest concerns is how customers can get their will printed, signed, and witnessed while respecting social distancing. Many have lost access to a printer, and even if they have one, they’re reticent to see neighbours or extended family (one of the requirements for witnesses is that they don’t benefit from your will, so anyone in your immediate family is typically ruled out).
As a response to these limitations, a petition was circulated in March by legal tech company NoticeConnect asking the Attorney General in Ontario to allow witnessing to happen over video, and on April 7th Ontario allowed virtual witnessing under the province’s Emergency Order. While this seemed to be a step in the right direction, the order provided few specifics on how virtual witnessing needs to be conducted in order to meet the requirements of the Succession Law Reform Act, so many interpreted it to mean that witnesses must still sign the original copy, requiring people to mail/courier their documents to witnesses and get on multiple video calls – not exactly tech making things easier.
The emergency order was updated today to clarify that witnesses do not need to sign the original will or POA, they just have to sign an identical printed copy. Again, while this is a step in the right direction, it still requires multiple printed copies with wet signatures.
So far, no other provinces have followed suit to allow for virtual witnessing, or to allow for any other digital processes for wills and Powers of Attorney documents.
There is a model for how to do this in a more efficient and effective way. Canada should be looking to places like New York, which has issued clear guidelines on virtual witnessing and allows witnesses to digitally sign documents. And unlike in Canada, the move to digital processes isn’t just temporary due to COVID-19 – in 2019, several U.S. states have adopted legislation allowing digital signatures on wills, and our U.S. partner Trust & Will executed the first digital will in the U.S. in Nevada in January 2019. Virtual commissioning is also widely available in the U.S., with companies like Notarize operating across the country.
Our limitation in Canada isn’t the technology. Companies like Vaultie already offer digital identity verification, digital signing, and audit trails for documents using Blockchain technology. Companies like Notary Pro already offer virtual witnessing and commissioning. The limitation is the law.
If COVID has highlighted anything, it’s that we need to move these processes online, and that starts with changing outdated laws. If something good can come out of this time, it’s the recognition that Canada needs to change legislation, embrace homegrown technology, and ultimately simplify things for Canadian consumers.
Erin Bury is the CEO at willful.co, an estate planning startup that provides an affordable, convenient, and easy way for Canadians create a legal will online for a fraction of the cost of visiting a lawyer.