E-wills are coming, till then paper documents crucial: Wahbi
By Kathy Rumleski, AdvocateDaily.com Contributor
“The current rules in Ontario for a will to be valid include that the testator must sign or acknowledge his or her signature on the document in the physical presence of both witnesses, and the witnesses must also sign or acknowledge their signatures in the physical presence of the testator,” says Wahbi, partner with Fogler Rubinoff LLP.
“Typically, one of the witnesses is the lawyer who prepared the will and there are important reasons for that,” she says.
“Clients ask me all the time, ‘Can you email me the will and I will sign it?’ And I say, ‘No, you have to sign it while I am present together with another witness,’” Wahbi says, adding that not only does the document need to be properly signed and witnessed, estate planning lawyers must be able to attest to the person’s capacity at the time the will is signed.
“I need to be able to say that you understood what your assets are, knew your family members, and made your own decisions about the will. I can’t do that if I don’t meet with you.
"Witnesses validate the person who signed the will is in fact the testator,” she says. “They can also confirm capacity, and that the will wasn’t signed under duress.”
Wahbi says having witnesses also substantiates that the testator understood the seriousness of the document, and formally intended it to be his or her will.
“When a person dies in Ontario with a will, the original signed and witnessed will is required for the issuance of probate (a Certificate of Appointment of Estate Trustee with a Will), the document required for the executor to evidence his or her authority to act in the estate,” says Wahbi.
“Wills are probated because financial institutions want the proof of an original will, and proof of the authority of the executor. That is what the probate process results in, and from there, the executor has control of the estate assets.”
Wahbi says the condition of the will is important. “There needs to be proof that it wasn’t marked up and didn’t have pages or attachments missing.”
Sometimes people will write on a will, she says, with the plan to talk to their lawyer about making changes.
“If they don’t update the will and there is writing on it, we would then have to file an affidavit explaining why it is in that condition,” Wahbi says.
She adds that there are a few valid reasons photocopies of a will may be probated, such as an original being destroyed in a house fire.
“If the will is missing, there is a presumption that the testator revoked it, and we would have to rebut that presumption,” says Wahbi.
“All of these rules are intended to ensure the authenticity of the document because of the finality and importance of it. They safeguard against fraud, can provide evidence of capacity and lack of duress, and signal to the testator the seriousness of the action being taken,” she says.
In addition to replacing the paper form of a will with an electronic form, and allowing for digital signature, the move to digital wills would include digital storage of the electronic document.
Most people leave their wills with their lawyer for storage, and the general guideline of the Law Society of Ontario results in a retention requirement of 120 years for wills held by lawyers who cannot locate the testator, she says.
“We have law firms with large, expensive storage problems now. They are holding these wills for their clients, and clients move or replace documents, and don’t tell their original lawyer,” says Wahbi. “There is an obligation on the lawyer’s part to hold the original documents, which means digitizing them doesn't solve the problem.”
She says there are thousands upon thousands of these wills in vaults and storage facilities across Ontario.
The issue of using a third party to store the wills also has potential problems such as questions around security and confidentiality, says Wahbi.
“I can’t say to anyone other than a lawyer at the firm that I have the will of John Smith, let alone let someone else hold the document,” she says.
“Electronic wills certainly make sense from the perspective of convenience, efficiency, and accessibility, but the major challenges are meeting all of the safeguards now in place in the paper format.
"Ensuring authenticity of the digital signature, managing the witnessing, securing the content of the document, registering and securing the storage of wills are all key components of what needs to be addressed in legislation allowing this form of will,” says Wahbi.
There are legislative proposals in various jurisdictions which allow for the dispensing of the formal validity, provided the court is satisfied the will is what the testator intended, under which some digital wills have been held valid. There is also broad legislation in some jurisdictions outside Canada that permits digital execution and storing of a will, Wahbi says.
At this point, Canada seems to be waiting to see if other jurisdictions can legislate e-wills while addressing issues of reliability and security, she says.
Until then, Wahbi advises clients to:
- keep the original will, and don’t mark it up or write on it
- put it somewhere safe, but accessible
- purchase a fireproof and waterproof cabinet
- tell your executor where the will is