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Validity of an electronic will

By Doug Carroll | January 28 2014 06:34PM

At issue
We are well into the digital era, and some might argue that we are overdue for succession laws to catch up with the times.Most Canadian provinces allow for a Will to be executed in a very low-tech form – an individual’s handwriting. So, why not take our law in the other direction to embrace today’s high-tech world? Some jurisdictions are doing just that, whether by legislation, judicial interpretation or a combination of the two.

Here are some examples that may foreshadow our own future.

Estate of Javier Castro 2013 ES 00140, Lorain County Probate Court (Ohio)

After declining a blood transfusion while at an Ohio medical clinic, Javier Castro discussed with two of his brothers his desire to execute a will. Lacking any paper, one of the brothers transcribed the wishes onto a Samsung Galaxy tablet, which Javier then signed with a stylus. The two brothers witnessed by the same method.

The document was printed after Javier’s death, and offered for probate. The judge did not view the document as an “electronic will” (which apparently would not have been valid in Ohio), instead simply finding that it met the definition of a written document.

NRS 133.085 Electronic will (Nevada)

The State of Nevada specifically authorizes the use of an electronic will. The legislation has been in place since 2001.

Key among the requirements for validity, there may be only one “original, unique, identifiable and unalterable electronic record of an electronic will.” As well, any attempted alteration of the authoritative copy must be readily identifiable, and similarly any copies of the authoritative copy must be readily identifiable as such.

Taylor v. Holt, TN Ct. App., October 31, 2003 (Tennessee)

Steve Godfrey prepared a document on his computer. He invited two neighbours to witness him affixing a computer generated version of his signature to the document, which was then printed, dated and signed by the two witnesses. Mr. Godfrey died a week later, and litigation ensued between his family and his girlfriend (the latter being named as full beneficiary in the impugned document).

The court upheld the document as a will. The computer generated signature fell into the category of “any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record.” (Quotation marks in original, being the relevant extract from Tennessee legislation.)

Re: Yu [2013] QSC 322 (Queensland, Australia)

A distressed man in Queensland, Australia typed a series of entries into the Notes app on his iPhone, and shortly thereafter committed suicide.

The relevant Queensland legislation identifies the requirements for there to be a valid will. Where these requirements are not fulfilled, a court may nonetheless accept a document to be a person’s will if it purports to state the testamentary intentions of the deceased person.

Relying upon the jurisdiction’s Interpretation Act and following a similar fact case that considered a Microsoft Word document (Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594), the court accepted the document created on the iPhone as the deceased’s will.

Practice points

  • Each province has rules outlining the allowable form a will may take, including the requirement to be in writing. Most provinces also have legislation dealing with the validity of electronic documents and electronic signatures. Such laws generally do not apply to wills, codicils or trusts created by them.
  • The new Wills, Estates and Succession Act, SBC 2009, c.14 comes into force in British Columbia in March, 2014. Definitions in the section allowing for court interpretation may open the door to documents “recorded or stored electronically.”
  • Don’t let your estate be the test case for whether your purported electronic will is valid where you live. Consult a lawyer.>

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