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, it’s easy and safe to keep a copy on your computer, phone, or in ‘the cloud’. These methods ensure that will writers don’t lose their documents and can access them easily. 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 it cured. According to section 37 of the Wills, Estates and Succession Act (WESA), a valid will in BC is:

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

These requirements make proving the legitimacy of an electronically stored will extremely difficult. Ultimately, a digital will cannot be a valid will without help from the courts. However, this doesn’t mean that digital evidence, electronic testaments and invalid wills are completely irrelevant for 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

BC’s estate laws aim to respect everyone’s final wishes and intentions. If someone doesn’t follow the proper will-writing procedures, BC courts can cure 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 to write a valid will, but never prints it or creates a physical written copy. 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 may be able to cure the Microsoft Word document into a valid will.

Statutory Law

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.

IIn the end, the court can cure Ellen’s electronic will and use it to administer her estate, but at what cost? The estate had to undergo the legal process of curing the testamentary document and appear before the courts to finally realize Ellen’s intentions. While creating this electronic document was better than doing nothing, Ellen could have avoided the extensive legal process if she 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, if the original copy of the will is missing, a copy can serve as the final will left by the testator. If the original copy of the will is missing, the law presumes revocation. This means that the law presumes that the testator intended to revoke the will – either by intentionally destroying it or that they did not want it 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, 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.

Issues Will Writers Should Consider

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. We always recommend taking measures to prevent 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.