Pursuant to section 3 of the Succession Law Reform Act (Ontario) (the “SLRA”), for a Will to be valid it must be in writing. The SLRA sets out certain requirements regarding the execution of a Will, including information on witnessing of the document and the signing of the document. Given the SLRA requirements, a typed message on a computer with electronic signature would not qualify as a valid Will, you cannot sign your Will with a stylus and a text message would not qualify as a valid Will, in Ontario. That said, estates law varies from jurisdiction to jurisdiction (in Canada, it varies from one province/territory to another) and there are jurisdictions which have accepted electronically signed documents (in fact, I have previously written about a Will written and signed on a tablet computer which was found to be valid by a judge in Ohio).
Recently, a court in Queensland accepted an unsent, draft text message as an official Will. According to an article written by ABC (the “Article”),
The Supreme Court in Brisbane heard the 55-year-old took his own life in October 2016, after composing a text addressed to his brother, which indicated his brother and nephew should “keep all that I have”, because he was unhappy with this wife.
A friend found the text message in the drafts folder of the man’s mobile phone, which was found near his body.
The unsent message detailed how to access the man’s bank account details and where he wanted his ashes to be buried.
According to the Article, although the law in Queensland sets out the manner in which a Will is to be executed, changes to the law which took place in 2006 allow less formal documents to be accepted as Wills.
Cases in other jurisdictions (such as the Ohio case and the case from Queensland referenced above) raise the question of whether Ontario legislation will need to be amended in the future to accommodate technology’s role in today’s society.
That said, the risk associated with making it too easy to create a Will must be considered. The SLRA provides that a Will is revoked by another Will made in accordance with the SLRA. Given that the act of preparing and executing a Will gives you the ability to indicate how you would like your estate distributed following your death, it would be unfortunate if a draft text message drafted out of anger undid the estate planning process you have already taken part in.
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