I read a very interesting article written by Christine Dobby at the Toronto Star and I felt compelled to address my own views on the digitization of Wills.
Video-conference technology
This past summer, the Ontario government passed a law which allowed for people to sign their Wills and Power of Attorney documents over video-conference with their 2 witnesses observing from the comfort of their own home. This was a great step forward for Ontario and especially essential during the COVID-19 pandemic. For those who were immuno-compromised or at high risk to contract the disease, this meant that they could make their wishes known in their Will and also appoint a Power of Attorney without risking exposure.
As outlined in the article, there are some new estate law changes going through the government system right now that have passed the second reading in the legislature. I will not go into all of the possible changes today (although I may in an upcoming blog because they are interesting!). Instead, I’ll focus on the estate law change that did not get included in the new legislation.
The complete digitizing of Wills.
A Millennial’s view on going digital
I was a law clerk for over a decade, and 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 never send me a hard copy document. They sign all contracts through DocuSign and we store all of their documentation, notes, personal information in the 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 recommend them to one of our Trusted Partner lawyers, they use their own current 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.
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!
Admittedly, I don’t know what security measures would be put in place to protect the testator (the person who the Will is for), but I cannot imagine how they are going to do it. Even if we were able to use fingerprint ID or facial recognition technology, a motivated enough 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, fully capable to understand their wishes and their finances and able to sign such an important document, but until then, I believe it is important to continue with the process as it is – in person and 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, smell those soon-to-come-up spring roses. I, for one, will happily watch Britain, Australia and even our own British Columbia to 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.
