Recently, the Alberta Law Reform Institute’s (ALRI) report, Creation of Electronic Wills was cited in an AllAboutEstates post about video wills. Dave Madan wrote the post to follow up on a Supreme Court of Montana decision, In re: Estate of Beck, 2024 MT 249. Mr. Beck died in a motor vehicle accident. Just four days earlier, Mr. Beck had sent his brother a video recording over his cell phone. The video recorded Mr. Beck’s intention to leave his entire estate to his brother. Mr. Beck’s brother attempted to probate the video recording as a will after Mr. Beck’s death. The petition to court was denied, and Mr. Beck’s brother appealed to the Supreme Court of Montana. However, the Supreme Court of Montana affirmed that a video document cannot be a will in that state because a video is not in writing.
Dave Madan compared this result with the direction taken in Canadian jurisdictions in relation to electronic wills. He writes, “Alberta has studied the issue closely: the Alberta Law Reform Institute recommended reforms to permit electronic wills, particularly text-based documents, but stopped short of endorsing video Wills.”
In Creation of Electronic Wills, ALRI wrote that:
“Non-text electronic formats, such as video recordings, may also sufficiently serve the evidentiary purpose. For example, a “video recording can constitute valuable evidence of whether there was undue influence or whether the testator had capacity.” Video technology may thus enable a court to directly observe the testator rather than relying on evidence of what another person saw or heard. Further, video recordings provide a visual representation of the person making the video. Recognizing a person’s face may be far easier for many people than recognizing that person’s handwriting. If handwriting is on the decline, then a handwritten will may not serve the evidentiary purpose as readily as it once did.”
So why did ALRI choose not to endorse the recognition of video wills?
ALRI considered the Uniform Law Conference of Canada’s (ULCC) amendments in its Uniform Wills Act when asking if Alberta should recognize electronic wills. The ULCC is an organization of professionals from the national legal community working towards harmonization of laws across Canada.
ALRI considered the definition of “electronic form” in the Uniform Wills Act. The ULCC drafted the Uniform Wills Act to follow academic literature that argues that writing is an indispensable formality for wills. Specifically, the ULCC’s definition of “electronic form” reads:
“electronic form”, in relation to an electronic will, other document or writing, or other marking or obliteration, means a form that is
- electronic,
- readable as text at the time the electronic will, document, writing, marking or obliteration is made,
- accessible in a manner usable for subsequent reference, and
- capable of being retained in a manner usable for subsequent reference;
Ultimately, ALRI had three options to consider:
- Follow the ULCC’s definition for “electronic form” and require text for electronic wills at the time they are made.
- Expressly prohibit video for electronic wills
- Enact video formalities for electronic wills.
ALRI explored all three options with its professional advisory committee and concluded that its recommendation should follow the first option. ALRI recommended that Alberta should follow the ULCC’s definition of “electronic form”. This represented an incremental change that allowed for creating and storing wills in an electronic medium, while retaining the requirement that wills be in writing and readable as text. In its rationale for not expressly endorsing the recognition of video wills, ALRI wrote that:
“While video wills may be approachable for laypeople, spoken language is generally informal and, as a result, imprecise. Writing, on the other hand, tends to contribute a solemn atmosphere to the occasion of will creation, warning the testator of the seriousness of testation and encouraging deliberation.”
This was just one of many reasons ALRI did not recommend expressly recognizing video wills. Uncertainty about video recordings and questions about the formalities required for video wills also contributed to ALRI’s final recommendation that electronic wills should be in writing.