What has to be done differently to make a will digital?


Bill 21-2020 of the Wills Estates and Succession Amendment Act has set out an allowance for the will-maker and their witnesses to all are present virtually and sign the electronic will digitally.


There is no real magic to it – just the extra step of audiovisual communication technology when doing the signature to satisfy the witnessing requirement. However, technology has a way of glitching, and without the certainty of paper, ink, and being in-person together, there is always room for errors to be made. Digital wills must also always be proven in solemn form – which is a legal step with the Courts that is expensive, so there are no cost savings. Although the online platforms will tell you there is, and maybe the upfront costs are less, there are extra costs after the person dies, so it isn’t saving.


How will this benefit people?


There are many benefits to signing wills digitally. 


Rural communities without local legal services will benefit. With gas prices as they are, a trip to the city to meet up with a lawyer can be costly. Also, people in hospital or who are housebound and cannot attend to a lawyer’s office will benefit. It is often uncomfortable for them to be transported or it may be unsafe for them to be in contact with many people.


Digitally signing a Will can benefit them and is a useful tool in certain circumstances. You still need technology though to accomplish this, which some rural communities may not have reliable access to or some people may not have those capabilities


Are there any risks?


So many risks – the formal requirements of signing and witnessing a will are just one part of the requirements of making a will valid. A person must also have the capacity and be free of undue influence – it can be hard for the witnesses to ascertain this over video.


One must be careful of online Will preparation platforms that prepare the paperwork but are lacking the legal advice, as with any will kit. You used to be able to buy these at Staples, then online, and now digitally. People think they are saving money, and they might, but if done incorrectly the estate litigation costs after they die to sort it out will be tens or even hundreds of thousands. There is more to preparing estate documents than the actual paperwork – and that is all these platforms do.


Certain provisions in a Will, or any estate planning document like the power of attorney or representation agreement, can have unintended consequences.


For example, here is a very usual scenario – an adult, with 2 adult children, 3 grandchildren, and a live-in partner of a few years. The adult says their estate isn’t complicated, they have a house, a car, a small mortgage, a savings account, and a credit card. They make an online will-kit Will leaving their estate to their children to benefit their two children and their families and think they have it covered. Time goes on, the mortgage gets paid out, one adult child passes on before them and then they pass on. The grandchildren from the child that passed on before them will not inherit under the Will because the estate goes to the living child only – this is an unequal division and not what the will-maker intended. Also, their common-law spouse is entitled to apply to the Court to vary the Will, because they were not included. The cost of this litigation is paid for by the Deceased’s estate, as they failed to make adequate provisions for the spouse in their estate planning. The cost of the litigation is tens of thousands of dollars and the estate is tied up for years.


This could all be avoided with adequate provisions in the Will and legal advice to support those decisions. Also, capacity, duress, and undue influence are all issues a lawyer manages when they are preparing documents and witnessing signatures.


Are there new considerations for what to include in your Will?


Digital assets like cryptocurrency, social media accounts, company shares, and certain digital investments are now getting more attention. As these types of things evolve, their internal rules are requiring specific instructions to pass them on to beneficiaries.


If they haven’t yet, should everyone be calling their lawyer to make these updates?


We have been getting a lot of these calls already – people want to be sure this new round of assets in the digital realm are properly dealt with. Coming to a lawyer is both for legal advice and to look at all these practical considerations – estate planning is complex and a person can’t know everything they need to consider.


Every person who comes in to meet with us always is surprised by things that had not even thought of until we were discussing their plans or estate. The paperwork is not just a snapshot in time, it is to look to the future and consider all possible events and plans. Getting your affairs in order is such a relief for people. It is peace of mind to have every box ticked.

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