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Storing A Will Electronically: Good Or Bad Idea?

Storing a Will Electronically: Good or Bad Idea?

With the world quickly becoming more and more digital, people are constantly looking for new ways to go paperless. For many documents and papers, it’s easy and safe to keep a copy on your computer, phone, or in ‘the cloud’. These methods can be beneficial as they ensure that the document won’t be lost, and make it easily accessible. When it comes to the electronic storage of wills, however, challenges can arise. Because it can be difficult to prove the authenticity of an electronically stored will, executors may find it challenging to have such a will deemed valid by the courts. As described in section 37 of the Wills, Estates and Succession Act (WESA), a valid will in BC is one that is:

  1. In writing,
  2. Signed by the will-writer, and
  3. Witnessed by 2 or more people.

These requirements make it extremely difficult to prove the legitimacy of a will that is stored electronically. Ultimately, a digital will cannot be a valid will without the help from the courts; however, this does not mean that digital evidence, electronic testaments and invalid wills are completely irrelevant when it comes to estate administration. When a document is considered an invalid will, but proves to be indicative of the will-writer’s final intentions, it can be cured into a valid will. Further, storing copies of a will, both physically and digitally, can be beneficial in some circumstances.

Curing Digital Documents

Digital documents that can be cured into valid wills are not limited to professional documents. Emails, text messages, notes or voicemails could all be cured in some cases.

BC’s estate laws are designed to ensure that everyone’s final wishes and intentions are respected. Even when the proper will-writing procedures are not followed, BC courts will work to remedy the problem by curing a testamentary document into a valid will. To clarify this process, let’s look at an example.

A woman, Ellen, writes a valid will in 2018 with the assistance of a will-drafting lawyer. In 2020, Ellen writes a new will on her own, using Microsoft Word. She follows all the proper procedures in writing a valid will, however, it is never printed or made into a physical copy in writing. Ellen also makes it clear in this electronic will that she intends to revoke the will she made in 2018. It’s clear that the will from 2020 is more indicative of Ellen’s final intentions than her 2018 will. The courts will recognize this and cure the Microsoft Word document into a valid will.

According to section 58 of the WESA, the courts can cure the document into a valid will if it represents:

  1. The testamentary intentions of a deceased person,
  2. The intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
  3. The intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

In the end, Ellen’s electronic will can be cured and used to administer her estate, but at what cost? The estate had to go through the legal process of curing the testamentary document, and be heard before the courts to finally bring about what Ellen had intended. Creating this electronic document was better than not doing anything at all, however, the extensive legal process could have been avoided if Ellen had simply printed the will and had it properly signed and witnessed. Read our blog on curing testamentary documents for more information.

Storing Copies of the Will Electronically

Sometimes, when the original copy of the will cannot be found, a copy can be used as the final will left by the testator. When the original copy of the will can’t be found, there is a presumption of revocation. This means that it’s presumed that the testator intended to revoke the will – intentionally destroying it or not wanting the will to be found. If an electronic copy of the will is to be used as the final will, this presumption must be rebutted. The claimant must prove on a balance of probabilities that the will-writer did not intend to destroy the original copy of the will, and it was lost inadvertently. If they are successful with this rebuttal, they then must prove the copy is a valid will (or can be cured into one).

When the original will is simply lost, having a copy of it stored electronically can be helpful. Read our blog on when the original copy of a will is required for more information.

While it might seem easy to have the courts cure electronic wills into valid wills, the process will be much more extensive than one may expect. Involving the courts in any dispute will lengthen the process, often making it more expensive at the same time. It’s always recommended to take measures to avoid any estate disputes from arising before your death. Storing a copy of your will electronically can be a good idea as a back-up plan, but it’s best to keep the original copy of your will in physical form. If you’re unable to keep your will in a safe place, some law firms are able to keep your will safe until your passing.

If you’re unsure of the best way to store your will, contact an experienced estate lawyer today. We will work to mitigate any risks of estate disputes involving your estate by advising you the best ways to properly store your will.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

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