Electronic Wills in BC: How E-Signing and Remote Witnessing Work

Since 1 December 2021, a will in British Columbia can be made, signed and kept entirely in electronic form, and your witnesses do not have to be in the same room as you. The law that allows this, the Wills, Estates and Succession Act (WESA), still insists on the same core formalities as a paper will.

This guide explains how e-signing and video witnessing work, who can act as a witness, and a part that is easy to overlook: keeping the signed original in a form your executor can find and use.

Are online and electronic wills legal in BC?

Yes. Under section 37(3) of WESA, the rule that a will must be in writing is satisfied if the will is in electronic form, and section 37(4) says an electronic will is a will for all purposes of the Act and any other enactment. These provisions have been in force since 1 December 2021.

Two terms are often mixed up. An online will usually means a will drafted with a website or template; once it is printed and signed on paper, it is an ordinary paper will. An electronic will is one that stays digital: it is signed electronically and kept as a digital file. If you are choosing between a kit, an online service and a lawyer, our guide to will kits, online wills and lawyers covers that decision. This guide is about the electronic format itself.

The formalities have not changed

An electronic will must meet the same basic requirements as a paper one. Under WESA:

• Age and capacity. You must be at least 16 and mentally capable of making a will (section 36).
• Writing. The will must be in writing, and electronic form counts (section 37(3)).
• Signature and witnesses. You must sign at the end of the will, or acknowledge your signature, in the presence of two or more witnesses who are present at the same time, and the witnesses must sign in your presence (section 37(1)).
• Who can witness. Witnesses must be 19 or older (section 40(1)). A beneficiary can act as a witness, but a gift to a witness or to a witness's spouse may be void (sections 40(2) and 43), so independent witnesses are the safer choice.

WESA does not require a lawyer or notary to witness a will, whether the signing happens in person or by video. Our guide to making a valid will in BC goes through the general formalities in more detail.

How electronic signing works

WESA defines electronic form as a form that is recorded or stored electronically, can be read by a person and is capable of being reproduced in a visible form. An electronic signature is information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record (section 35.1).

For wills, section 35.3 says a requirement for a signature is satisfied by an electronic signature. The paper-will rule about where on the page the signature sits (section 39(1)) does not apply to an electronic will. Instead, an electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent you intended to give effect to the entire will.

The Act does not name a particular program or signing platform. What matters is that the signatures attach to the will in a way that shows intention, and that the signed result is saved and kept intact.

Witnessing by video: electronic presence

Section 35.2 says that a requirement to do something in another person's presence is satisfied while the people are in each other's electronic presence. That means two or more people in different locations communicating at the same time to an extent similar to being physically present together. The Act's definition of communicate refers to audiovisual technology that lets people hear and see each other, so a phone call alone does not meet it. Some people can be in the room while others join by video (section 35.2(2)).

Video witnessing has a longer history than electronic wills: electronic presence counts for wills made since 18 March 2020. The 2020 amending Act included a transitional rule so that a will made between that date and the Act's Royal Assent, in accordance with section 35.2, is not invalid solely because the will-maker and witnesses were in each other's electronic presence.

Signing a paper will over video

If you want a paper will but the witnesses are elsewhere, section 35.2(3) allows the will to be signed in counterpart: each person signs a complete and identical copy. Copies are treated as identical even if there are non-substantive differences in format (section 35.2(4)). The Province's explanation of the probate rules describes all of the signed copies together as making up the will, so every counterpart has to be kept.

Signing an electronic will with witnesses on video

With an electronic will, everyone can sign the same digital document while connected by video. The Province's explanation of the 2021 probate rules notes that, because of digital signatures, each witness can sign the same document before it is saved. That saved document is the signed original.

Storage: which file is the original?

This is where electronic wills differ most from paper. Under the Supreme Court Civil Rules, an electronic will is in its original electronic form if it is in the electronic form in which it was first saved after being signed; any other version is a digital reproduction (Rule 25-1(7)). When your executor applies for probate, the rules call for the will in its original electronic form if that original exists (Rule 25-3(3)).

Everyday computer habits can undermine that. Opening and re-saving the document, converting it to another format or keeping several slightly different versions can leave your executor unsure which one is the will. If the original was not first saved as a PDF, or is held by an outside online service, the executor must file a copy together with a long-form affidavit (Form P4) and an affidavit of electronic will (Form P45). Our guide to probate of an electronic will explains those steps. A few habits help:

• Save the signed will once, ideally as a PDF, and do not edit it afterwards.
• Keep identical backups. The Province's explanation of the rules says more than one original can exist if the copies are unaltered and in the same format.
• Tell your executor where the will is and how to get into it. Executors must search the electronic devices and online repositories the deceased used (Rule 25-3(14)), but a locked phone or a forgotten password can still cause delay.
• Consider filing a wills notice recording where your will is kept. The Province’s registry pages describe notices that way and do not address electronic wills specifically. Our guide to the BC wills registry explains how.

Changing or revoking an electronic will

You cannot change an electronic will by editing the document. Section 54.1 says that to alter an electronic will you must make a new will that meets section 37. Revocation has its own rules in section 55.1: deleting one or more electronic versions with the intention of revoking, destroying a paper copy in the presence of a witness with that intention, a later will, or a written declaration, which may itself be electronic. An inadvertent deletion is not evidence of an intention to revoke (section 55.1(3)). Our guide to changing, revoking or storing an electronic will covers the details.

Is an electronic will right for you?

An electronic will can make sense when your witnesses are hard to gather in one place, when you spend long periods away from BC, or when you simply prefer digital records. A paper original may suit you better if you are unsure your executor could get into your devices or accounts, or if your family is likely to question the will. Either way, the risks lie mainly in the signing session and in storage, not in the format itself.

If the formalities are missed, a court can sometimes still give effect to a document under section 58 of WESA, but that takes a court application and evidence. It is far easier to get the signing right. If you are deciding who should prepare your will, see our comparison of a lawyer or notary for your will. For signing other documents electronically, see our guide to electronic signatures on legal documents, and for a will written by hand, see handwritten wills in BC.

Want to sign your will by video? Set it up properly from the start

Our wills and estate planning lawyers can prepare your will, arrange and run the signing with your witnesses by video, and advise on keeping the signed original so your executor can find it and use it.

Call 604-259-2844 or send us a message to arrange a consultation by video or at our Vancouver office.