This is a major shift in the deployment of LegalTech for Wills but resulted in little media coverage. This is odd given that British Columbia is the first Province in Canada, and globally one of a few jurisdictions to permanently recognize the electronic signing of Wills.
Electronic Wills were announced by the Province in OIC 541-2021 which put into effect the amendments approved in 2020 in Bill 21: Wills, Estates and Succession Amendment Act.
What was a routine government circular, opened the gates in the race amongst various technology players and legal professionals that support but also profit from the Province’s policy goal – making the process of completing one’s Will easier and more accessible to all, thus improving the percentage of people that have a Will.
Dated government and industry surveys indicate that over 60 percent of Canadians do not have Wills. If electronic Wills are poorly implemented, then this goal to issue more Wills is prone to failure or results in Wills that are potentially contested. The risk is, as Albert Einstein pointed out, that: “It has become appallingly obvious that our technology has exceeded our humanity.”
A Will is an extremely important legal, and financial, but also emotional document. A friend contributed his thoughts when asked: “A thing I really appreciated about seeing my Father’s Will and that of my grandfather was the familiar scrawl of their signatures – it made it personal to those being required to read it after their passing – it gave it authority and gravitas. I still have both Wills. “
For technology to improve the delivery of Wills it must not just be evaluated by commercial success, it must improve the ease of delivery while guaranteeing the key aspect of a Will – confidence in human intent.
All the technology services vying to provide these end-of-life wishes must adhere, of course, to the letter of the law; but also work diligently to assist British Columbia’s Attorney General to improve the regulatory framework that underpins how electronic Wills are executed and treated. This Japanese concept of Kaisen or “constant improvement” can help on-line platforms, together with the legal profession, better protect the needs of both testators and beneficiaries.
What has been insensitively described as “DeathTech” requires a greater sense of reverence for the Last Wishes of the deceased to protect the commitments made to the beneficiaries. The integrity of the process must be a core value of online Will providers and Wills prepared by law firms that are executed electronically.
To preserve the tradition of human intent evident in a traditionally prepared and executed Will, and to ensure best practices in the process, the service provider should use an e-signing platform that only allows authentic one-time electronic signatures and denies proxy signatures. Proxy signatures are stored and then cut and pasted or generated cursive “marks” derived from simply typing your name. The signatures must be embedded and stored in electronic documents that have tamper proof certificates; are conducted over recorded video where both the e-signing and the “continuous presence” outlined in the Statute are recorded and tracked simultaneously; and stored together to create an enforceable electronic Last Will and Testament. Having a typed name depersonalizes it – while the law suggests that is simply fine, it is lightweight and impersonal and makes the document simply a transaction – but also an opaque one that is prone to challenge after the testator passes away.
This electronic recreation of the human equation in a Will mitigates stress during mourning and grief period common to all cultures. It also prevents the chaos depicted in the film The Budapest Hotel with its multiple Wills, or the widely known tragedy portrayed in the Cinderella fable when her departed father’s wishes were not honoured.
The successful provision of electronic Wills in British Columbia demands a professional code that all the players commit to. The foundation of this code is that all the parties involved must exceed the letter of the law by contributing to the spirit of the law. Only via this collective service to the Estate can governance of and technology standards for electronic Wills improve. Progress, based on the spirit and intent of the law requires regular updates of the regulations by the BC Ministry of Justice. This will require a formal progress that allows for the quick adoption of improvements deemed as favourable to the public.
Process improvements can drive the percentage of people with Wills, but it also ultimately determines which service providers succeed in the marketplace. Wills should not just be deemed a traditional technology business with no sentiment, no ethics, and no standards. The public requires our best and will understand it when it is missing.
Bad actors that to do not self-police are prone to legal challenges, called out on social media and corrected by powerful silent policing that happens when they do not get referrals from previous clients. To make sure that the introduction of electronic Wills can be a positive social force the key technology and law firms should encourage the soft boot of government to be active.