Generally for a Will to be valid in B.C. it must be signed by the will-maker in the presence of two adult witnesses who must be present at the same time and who must also sign the Will.
The Electronic Witnessing of Wills (COVID-19) Order (M161) was made May 19, 2020 and allows for electronic witnessing of Wills in B.C. Wills that are electronically witnessed must include a statement indicating that it was witnessed in accordance with the Order. The Order will be repealed when Bill 21, the Wills, Estates and Succession Amendment Act 2020 is brought into force which will allow for remote witnessing of Wills beyond the expiration of B.C.’s state of emergency but for now, Wills witnessed electronically must refer to the Order and will still be valid after the Order is repealed under Bill 21.
Many provinces are following suit and allowing electronic witnessing of Wills however this option should only be used when in-person meetings are not possible or may pose a risk to the will-maker and/or witnesses, for example, if the will-maker has a compromised immune system or is currently in hospital and not allowed visitors due to the pandemic.
If electronic witnessing of a Will is appropriate, the will-maker and both witnesses can be present electronically, or there can be a combination of physical and electronic presence, and each person who is electronically present may sign an identical document in counterpart.
It’s important for lawyers and others to ensure that when a will-maker is electronically present, there are no concerns of undue influence especially for clients who may be particularly vulnerable such as the elderly. It may be prudent to arrange for the will-maker to speak directly with the lawyer without anyone else in the room so that the will-maker can speak freely and express their wishes.
Deborah A. Todd
