Recently, my home province of Ontario passed new legislation making it legal for Wills to be digitally witnessed.
This was actually a controversial decision, although not for the reasons you might expect: as The Toronto Star’s Christine Dobby reported, some legal groups were upset that the new law didn’t go further. Many people had been advocating for Ontario to allow fully digital Wills — i.e., Wills that don’t exist at all in paper format.
As the Founder & CEO here at Viive, I obviously have my own opinions about the digitization of Wills. I’ll outline them in more detail below, but to sum it up: when it comes to your Last Will & Testament, I’m of the opinion that there’s no substitute for good old pen and paper.
Digitization of Wills: What’s allowed in Ontario?
Here in Ontario, the new legislation (signed into law in 2021) allows people to sign their Wills and Power of Attorney documents over video conference, with their 2 witnesses observing from the comfort of their own homes.
This was a great step forward for Ontario, and it was especially essential during the COVID-19 pandemic. For those who were immunocompromised or at high risk of severe illness, this meant that they could make their wishes known in their Will and also appoint a Power of Attorney without risking potentially deadly exposure.
However, the legislation stopped short of allowing fully digital Wills. This means that in Ontario, your Last Will & Testament still needs to be printed out and signed with ink.
A Millennial’s view on going digital
I was a law clerk for over a decade, and in that time, I killed a lot of trees. Law clerks focus on gathering evidence and creating books of documents to support a client’s case. This meant printing, copying, and printing some more paper for the dozens of cases I had going on at one time.
When I launched Viive, I promised myself that I would go digital as much as possible. My clients sign all contracts through DocuSign and we store all of their documentation, notes, and personal information in the secure cloud-based system SideDrawer.
When it comes time for them to draft their Last Will & Testament, Power of Attorney for Personal Care, and Continuing Power of Attorney for Property (POAs), we either refer them to one of our Trusted Partner lawyers, have them use their existing lawyer, or (if applicable) we recommend that they use an online Will-drafting platform.
Whether they go to a lawyer’s office or use an online service, they still must sign their Will using a pen and have it witnessed by 2 people. This is called a wet copy.
Now, I am all for saving trees. However, even as a typical Millennial with my desire to preserve the environment and take advantage of the digital age we live in, I remain in support of Wills and POAs being signed by a person. With. A. Pen.
Why I’m cautious about electronic Wills
As a litigation law clerk, I have seen far too many occurrences of undue influence from the children, friends, or family of an elderly person… and that is even with the in-person signing of the document. Imagine how easily someone could forge 85-year-old mom’s signature if it was done using a digital platform. So Easy! Too easy!
My concern is that it’s too difficult to protect the identity of the testator (the person the Will is for) if the Will is entirely digital. Even if we were able to use fingerprint ID or facial recognition technology to verify their identity, a sufficiently motivated person could still hold mom’s face up to the screen, couldn’t they?
I am open to the idea that an innovator will eventually develop a technology that can prove that a person is in their right mind and fully aware of everything that’s going on when they sign a digital Will. But until then, I believe it is important to continue with the process as it is: in person, on paper.
There is no need for us to rush purely for the sake of convenience. The changes that were made to allow people to sign over video conference were needed, especially given COVID-19.
However, the idea of a completely digitized Will comes with too many risks for such a vital document, and would open the door to increased undue influence and litigation surrounding the validity of a Will.
Let’s take a breath, slow down, and smell those soon-to-come-up spring roses. I, for one, will happily watch Britain, Australia, and even our own British Columbia be the guinea pigs in this experiment. Let’s see how it goes for them with their digitized Wills before Ontarians take on what could be a huge risk to a family’s legacy.
