Probate of an Electronic Will in BC: What the Executor Has to File

If you are named as executor in an electronic will, the probate application follows the same basic path as for a paper will, with extra rules about the digital document. Since 1 December 2021, the Supreme Court Civil Rules have set out what the probate registry needs when a will was signed and kept electronically.

This guide walks through those rules: finding the original electronic form, giving notice, Forms P45 and P46, and what the grant will look like.

An electronic will is probated like any other will, with extra steps

Under section 37(4) of the Wills, Estates and Succession Act, an electronic will is a will for all purposes. The overall process is the familiar one: search for the will, give notice, wait at least 21 days, then submit the application for a grant of probate. As with any application, it includes a certificate from Vital Statistics showing the result of a search for a wills notice (Rule 25-3(2)(d)); our guide to the BC wills registry explains how to order one. Our guide to applying for probate in BC sets out the general steps. The differences for an electronic will come down to one question: which version is the will?

Step one: find the original electronic form

The rules answer that question. 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, and a version in any other form is a digital reproduction (Supreme Court Civil Rules, Rule 25-1(7)). The Province's explanation of the rules compares a reproduction to a photocopy: a version saved in a new format, or with changed metadata, is a copy rather than an original.

Your search for the will has to include electronic devices and third-party electronic repositories the deceased used, and you swear that a diligent search was made (Rule 25-3(14)). Check computers, phones, email, cloud storage and any will-storage service, and preserve what you find without opening and re-saving it.

Step two: notice, and the right to demand the original

At least 21 days before applying, you deliver a notice of proposed application (Form P1) with a copy of the will to the people entitled to notice (Rule 25-2). When the will is electronic, recipients have extra rights:

• The original on request. A recipient is entitled to receive the will in its original electronic form, or access to it if the original is stored only at a secure online location (Rule 25-2(1.2)).
• Form P46. That right is exercised by delivering a demand for the will in its original electronic form in Form P46 (Rule 25-2(1.3)).
• Seven days. You must provide the will in its original electronic form, or access to it, within 7 days of receiving the demand (Rule 25-2(1.4)).
• No visible signature. If the will does not contain a visible signature, the notice must give the reasons (Rule 25-2(3)(h)).

Our guide to BC probate forms explains Form P1 and the other standard forms.

Step three: what goes into the application

Rule 25-3(3)(a.1) lists what must be filed with an application for probate when the will is electronic:

• If the original was saved as a PDF: the will in that format.
• If the original was not first saved as a PDF: a physical copy or a copy saved as a PDF, a long-form affidavit (Form P4) and an affidavit of electronic will (Form P45).
• If the will is kept in a third-party electronic repository: a physical or PDF copy, Form P4, Form P45 and information about how the repository can be accessed to view the will.
• If the original does not exist or is not available: a digital reproduction or physical copy of the will.
• Any court order affecting the validity or content of the will that has not yet been filed in the proceeding.

If the electronic will you file is alterable, the registrar may require an affidavit confirming that it was not altered before it was filed (Rule 25-3(22.1)).

Form P45: affidavit of electronic will

According to the Province's explanation of the 2021 rule changes, Form P45 is where the applicant confirms that the original was not altered before the copy was made and explains how that was checked. It is required in the situations listed above, so it is worth establishing early which version you hold and how it has been kept.

What the grant will look like

When the grant issues, a physical copy of the originally signed version of the electronic will is attached to it (Rule 25-4(1.1)(c)). That differs from a paper will signed in counterparts over video, where the grant attaches a copy of the will-maker's counterpart and a copy of the last page of each counterpart signed by witnesses who were not physically present (Rule 25-4(1.1)(b)). If the will you hold is a paper will signed in counterparts rather than an electronic will, the requirements are not the same.

Problems that slow these applications down

• No access. The will is on a locked device or in an account you cannot open.
• Several versions. Different copies exist and it is unclear which one was first saved after signing.
• A document edited after signing. Someone opened and changed the will, so it is no longer in its original electronic form.
• No visible signature. The will relies on a signature that does not appear on its face, which the notice must explain.

If the original cannot be found at all, the issues overlap with those in our guide on a lost original will. If the will may not have been signed or witnessed properly, the court can sometimes give effect to it under section 58 of the Act, but that requires its own application. For background on how electronic wills are made, see our guide to electronic wills and remote witnessing, and for the steps that can be handled at a distance, see our guide to handling probate remotely.

Named as executor in an electronic will? Check what the registry needs before you apply

Our probate and estate lawyers can locate and preserve the original electronic will, prepare the notices and affidavits, respond to any demand for the original, and prepare and file the application with the probate registry.

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