Estates & Wills & Trusts

Video wills not likely any time soon: Urback

By Tony Poland, AdvocateDaily.com Associate Editor

Technology may be expanding our horizons faster than ever imagined, but don’t expect to see the legal acceptance of video wills any time soon, says Toronto wills and estates lawyer Matthew Urback.

“I think it might be the direction we’re going, although I don’t think it could happen tomorrow,” says Urback, a partner with Shibley Righton LLP. “The way that technology is changing, it’s not outrageous to think that we could see legally acceptable video wills in our lifetime.”

The biggest drawback is that video wills are not binding under our current laws, he tells AdvocateDaily.com.

“Basically, there are certain formalities that you have to meet in order to have a valid will,” Urback says. “The Succession Law Reform Act clearly states a will is valid only when it’s in writing.”

If you write your will, it must be in your handwriting and signed, he explains. If it’s typed, you must sign it in the presence of two witnesses who do not benefit under the will.

“If courts are going to start accepting video wills, the question is, ‘What are the formalities that capture the spirit of what you’re looking for with handwritten wills?’” Urback says. “Obviously, you can’t sign it because it’s a video. Would you have to do something to verify a copy of the recording? Do you have to save it a certain way to show that it wasn’t coerced?”

One of the biggest concerns of video wills would be the danger that they could be compromised, he says.

“As technology gets more complicated, the ways in which video can be manipulated are probably beyond what I understand,” Urback says. “But it’s a natural progression. That’s the way our world is going, but at the same time, I think it’s inherently vulnerable.”

He notes technology changes so quickly that it may be difficult to ensure the necessary safeguards are in place.

“It’s like you have you a coevolution — some people are trying to manipulate things, with the other side trying to catch them and develop checks to the system,” Urback says. “One is trying to stay ahead of the other. It’s almost like the sky’s the limit for manipulation.”

Currently, handwriting experts can be called in to determine if a will is valid, but it may be a more challenging process with video wills, he says.

For now, video can be useful to accompany the written will — almost like “a letter of instruction to your executor,” Urback says.

“It’s not binding, but it can be persuasive to your loved ones to leave special instructions,” he says.

Urback says he is “in favour of trying to evolve,” and thinks it will be interesting to see how the issue unfolds in coming years.

“I would recommend moving in that direction,” he says. “It might become a more tempting option, but I don’t think we’re there yet in terms of how we’re actually going to accept it. There are still too many questions.”

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