2020 Legislative Session: 5th Session, 41st Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE DAVID R. P. EBY

ATTORNEY GENERAL

BILL 21 – 2020

WILLS, ESTATES AND SUCCESSION AMENDMENT ACT, 2020

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the

Province of British Columbia, enacts as follows:

SECTION 1: [Wills, Estates and Succession Act,

section 35.1] adds a definition of "electronic presence" and related

definitions to

Part 4 of the

Act.

1 The Wills, Estates and Succession Act, S.B.C. 2009, c. 13, is amended by adding

the following

section to Division 1 of

Part 4:

Definitions

35.1

In this Part:

"communicate" means communicate using audiovisual communication technology, including assistive

technology for persons who are hearing impaired or visually impaired, that enables

persons to communicate with each other by hearing and seeing each other;

"electronic" means created, recorded, transmitted or stored in digital or other intangible form

by electronic, magnetic or optical means or by any other similar means;

"electronic presence" or "electronically present" means the circumstances in which 2 or more persons in different locations communicate

simultaneously to an extent that is similar to communication that would occur if all

the persons were physically present in the same location.

SECTION 2: [Wills, Estates and Succession Act,

section 35.1]

adds

definitions of "electronic signature" and "electronic will" and a related definition

Part 4 of the Act;

sets out when an electronic record is deemed not capable of being recorded, stored

or reproduced.

Section 35.1 is amended

(

a) by renumbering the

section as

section 35.1 (1),

(

b) in subsection (1) by adding the following

definitions:

"electronic form" , in relation to an electronic will, means a form that

(

a) is recorded or stored electronically,

(

b) can be read by a person, and

(

c) is capable of being reproduced in a visible form;

"electronic signature" means information in electronic form that a person has created or adopted in order

to sign a record and that is in, attached to or associated with the record;

"electronic will" means a will that is in electronic form. , and

(

c) by adding the following subsection:

(2) A record in electronic form is deemed not to be capable of being recorded, stored

or reproduced if the person providing the record inhibits the recording, storage or

reproduction of the record by the recipient.

SECTION 3: [Wills, Estates and Succession Act,

section 35.2] provides for persons to be in each other's electronic presence when taking actions

under the Act.

3 The following

section is added:

Electronic presence

35.2

(1) In this Part, except in

section 38, a requirement that a person take an action

in the presence of another person, or while other persons are present at the same

time, is satisfied while the persons are in each other's electronic presence.

(2) For certainty, nothing in this

section prevents some of the persons described

in subsection (1) from being physically present and others from being electronically

present when the action is taken.

(3) If a will-maker and witnesses are in each other's electronic presence when the

will-maker makes a will, the will may be made by signing complete and identical copies

of the will in counterpart.

(4) Copies of a will in counterpart are deemed to be identical even if there are

non-substantive differences in the format of the copies.

SECTION 4: [Wills, Estates and Succession Act,

section 35.3] provides for the use of electronic signatures in wills and other documents.

4 The following

section is added:

Electronic signature

35.3

(1) For the purposes of sections 37, 40, 43, 62 and 77,

(

a) a reference to a signature includes an electronic signature and a reference to

a statement being signed includes the statement being signed electronically, and

(

b) a requirement for the signature of a person is satisfied by an electronic signature.

(2) Section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.

(3) An electronic will is conclusively deemed to be signed if the electronic signature

is in, attached to or associated with the will so that it is apparent the will-maker

intended to give effect to the entire will.

SECTION 5: [Wills, Estates and Succession Act,

section 37]

provides for the making of electronic wills;

updates language.

Section 37 is amended

(

a) in subsection (1) (

b) by striking out " acknowledged by the will-maker as his or hers " and substituting " acknowledged by the will-maker as the will-maker's signature " , and

(

b) by adding the following subsections:

(3) The requirement under subsection (1) (

a) that a will be in writing is satisfied

if the will is in electronic form.

(4) An electronic will is a will for all purposes of this Act and any other enactment.

SECTION 6: [Wills, Estates and Succession Act,

section 54] clarifies that an electronic will cannot be altered in the same manner as a physical

will.

Section 54 (1) is amended by striking out " to a will " and substituting " to a will other than an electronic will, ".

SECTION 7: [Wills, Estates and Succession Act,

section 54.1] sets out how an electronic will may be altered.

7 The following

section is added:

How to alter electronic will

54.1

(1) A will-maker seeking to make an alteration to an electronic will must make a new

will in accordance with

section 37 [how to make a valid will] .

(2) For certainty,

section 54 does not apply to an electronic will.

SECTION 8: [Wills, Estates and Succession Act,

section 55] clarifies that an electronic will cannot be revoked in the same manner as a physical

will.

Section 55 (1) is amended by striking out " A will or part of a will " and substituting " A will other than an electronic will or a part of a will other than an electronic

will ".

SECTION 9: [Wills, Estates and Succession Act,

section 55.1] sets out how an electronic will may be revoked.

9 The following

section is added:

How to revoke electronic will

55.1

(1) An electronic will or part of an electronic will is revoked only in one or more

of the following circumstances:

(

a) by the will-maker, or a person in the presence of the will-maker and by the will-maker's

direction, deleting one or more electronic versions of the will or of part of the

will with the intention of revoking it;

(

b) by the will-maker, or a person in the presence of the will-maker and by the will-maker's

direction, burning, tearing or destroying all or part of a paper copy of the will

in some manner, in the presence of a witness, with the intention of revoking all or

part of the will;

(

c) the circumstances described in

section 55 (1) (

a) and (b) [how to revoke will] ;

(

d) by any other act of the will-maker, or another person in the presence of the

will-maker and by the will-maker's direction, if the court determines under

section

58 [court order curing deficiencies] that

(

i) the consequence of the act of the will-maker or the other person is apparent,

and

(ii) the act was done with the intent of the will-maker to revoke the will in whole

or in part.

(2) A written declaration made in accordance with

section 55 (1) (

b) may be in electronic

form and signed with an electronic signature.

(3) For certainty, an inadvertent deletion of one or more electronic versions of

a will or part of a will is not evidence of an intention to revoke the will.

SECTION 10: [Wills, Estates and Succession Act,

section 57] clarifies that an electronic will cannot be revived in the same manner as a physical

will.

Section 57 (1) is amended by striking out " A will or part of a will " and substituting " A will other than an electronic will or a part of a will other than an electronic

will ".

Transitional Provision and Repeal

SECTION 11: [Transition – will made during specified period] provides that wills made on or after March 18, 2020 up until the date of Royal Assent

are valid if made in the electronic presence of witnesses.

Transition – will made during specified period

(1) In this section, "specified period" means the period that starts on March 18, 2020 and ends on the date this Act receives

Royal Assent.

(2) A requirement in

Part 4 of the Wills, Estates and Succession Act that a person take an action in the presence of another person is satisfied in relation

to a will made in the specified period if the will was made in accordance with

section

35.2 of the Wills, Estates and Succession Act , as added by

section 3 of this Act, whether or not it purports to have been made

under the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020.

(3) A will made in the specified period that complies with

section 35.2 of the Wills, Estates and Succession Act , as added by

section 3 of this Act, whether or not it purports to have been made

under the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020,

is not invalid solely because the will-maker and the witnesses were in each other's

electronic presence.

SECTION 12: [Repeal] repeals the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020.

Repeal

The Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020, is

repealed.

Commencement

The provisions of this Act referred to in column 1 of the following table come into

force as set out in column 2 of the table:

Item

Column 1

Provisions of Act

Column 2

Commencement

Anything not elsewhere covered by this table

March 18, 2020

Section 2

By regulation of the Lieutenant Governor in Council

Sections 4 to 10

By regulation of the Lieutenant Governor in Council

Section 12

By regulation of the Lieutenant Governor in Council

Explanatory Notes

SECTION 1: [Wills, Estates and Succession Act,

section 35.1] adds a definition of "electronic presence" and related

definitions to

Part 4 of the

Act.

SECTION 2: [Wills, Estates and Succession Act,

section 35.1]

adds

definitions of "electronic signature" and "electronic will" and a related definition

Part 4 of the Act;

sets out when an electronic record is deemed not capable of being recorded, stored

or reproduced.

SECTION 3: [Wills, Estates and Succession Act,

section 35.2] provides for persons to be in each other's electronic presence when taking actions

under the Act.

SECTION 4: [Wills, Estates and Succession Act,

section 35.3] provides for the use of electronic signatures in wills and other documents.

SECTION 5: [Wills, Estates and Succession Act,

section 37]

provides for the making of electronic wills;

updates language.

SECTION 6: [Wills, Estates and Succession Act,

section 54] clarifies that an electronic will cannot be altered in the same manner as a physical

will.

SECTION 7: [Wills, Estates and Succession Act,

section 54.1] sets out how an electronic will may be altered.

SECTION 8: [Wills, Estates and Succession Act,

section 55] clarifies that an electronic will cannot be revoked in the same manner as a physical

will.

SECTION 9: [Wills, Estates and Succession Act,

section 55.1] sets out how an electronic will may be revoked.

SECTION 10: [Wills, Estates and Succession Act,

section 57] clarifies that an electronic will cannot be revived in the same manner as a physical

will.

SECTION 11: [Transition – will made during specified period] provides that wills made on or after March 18, 2020 up until the date of Royal Assent

are valid if made in the electronic presence of witnesses.

SECTION 12: [Repeal] repeals the Electronic Witnessing of Wills (COVID-19) Order, Ministerial Order 161/2020.

Copyright (

c) Queen's Printer, Victoria, British Columbia, Canada