Explanation of the 2021 amendments to the Supreme Court Civil Rules (Probate) – eWills

The Supreme Court Civil Rule dealing with probate and administration (“Probate Rules”) are being amended to reflect changes to the Wills, Estates and Succession Act that will recognize wills that are signed and stored electronically.

Contents

• Summary of Significant Changes
  • Rules Related to Electronic Wills
  • Rules – Other
  • Forms Related to Electronic Wills
  • Forms – Other
• Explanation of Probate Rule Amendments
  • Section 1 – Amending Rule 23-3 (5)
  • Section 2 – Amending Rule 25-1 (1)
  • Section 3 – Amending Rule 25-1 (7)
  • Section 4 – Amending Rule 25-2
  • Section 5 – Amending Rule 25-2
  • Section 6 – Amending Rule 25-2
  • Section 7 – Amending Rule 25-2
  • Section 8 – Amending Rule 25-3 (3)
  • Section 9 – Amending Rule 25-3 (5)
  • Section 10 – Amending Rule 25-3 (6)
  • Section 11 – Amending Rule 25-3 (14)
  • Section 12 – Adding Rule 25-3 (22.1)
  • Section 13 – Adding Rule 25-3.1 and Rule 25-3.2
  • Section 14 – Amending Rule 25-4
  • Section 15 – Amending Rule 25-6 (11)
  • Section 16 – Amending Rule 25-14
  • Section 17 – Amending Rule 25-15

Summaries of Significant Changes

Rules Related to Electronic Wills

• Guidance is provided as to when a will is deemed to be in its original electronic form.
  • For the purpose of filing and notice, it is important to distinguish between the “originals” of an electronic document that may have been shared since it was originally created and “reproductions”. 
    • There may be multiple electronic “originals”, these are electronic documents that have been unaltered since the day they were signed and first saved and remain in the same format.  An electronic original has metadata and/or electronic signature characteristics that can be checked to help verify the document’s authenticity.  This doesn’t change even if multiple originals are created and shared.
    • Electronic “copies” or “digital reproductions” are versions that have been saved in a new file format or otherwise have changes to the metadata.  These are more akin to a photocopy of an original.
  • Amendments to Rule 25-1 (7)
• If an application for a representation grant relates to an electronic will, a recipient of notice of that application is given the right to receive an electronic Will in its original electronic form (or a right to access to any online repository where the original is stored). 
  • To exercise this right a the recipient of notice would send a new Form P46 (Demand) to the applicant.
  • Amendments to Rule 25-2 (1.1)
• An applicant is specifically permitted to file a copy of an electronic will if it is saved in a format other than a PDF or if the only original is stored securely in an online location. 
  • This is allowed because, currently, the court registry currently only accepts electronic documents in PDF Format.
  • Amendments to Rule 25-3 (3)
• The requirement to search for documents has been updated to include electronic locations,
  • However, the obligation to search, for both physical and electronic documents, is now limited to where a deceased stored “important” documents.
  • Amendments to Rule 25-6 (11)
• An applicant has been given the ability to apply to waive the obligation to search an electronic device if the person does not have access to it (e.g., does not have the password).
  • Amendments to Rule 25-14 (1) adding paragraph (s)

Rules – Other

• The class of other people who must be given notice is the person entitled to notice is (or may be) mentally incompetent has been expanded, and now includes a broader class of people who have obtained their authority outside of BC
  • Amendments to Rule 25-2 (10)
• Rules have been added that clarify how someone can amend or withdraw their application.
  • New Rules 25-3.1 and 25-3.2

Forms Related to Electronic Wills

Form P1 – Notice of Proposed Application…

• Revised to advise a recipient if an application relates to an electronic will
• If application relates to an electronic will advises recipient that they have a right to receive their own original of that electronic will.

Form P4 – Affidavit … for Grant of Probate… (Long Form)

• Section 5 updated to reflect that a person must search for a will in both physical and electronic locations.
• Section 6 updated to allow the applicant to explain why they cannot file the original electronic will, if necessary.
• Section 7.1 added to allow someone to explain issues arising from an electronic will, if necessary.
• E.g. electronic signature doesn’t appear visually.
• Section 8 is updated to address the fact that separate documents, which are referred to in a will, cannot be attached to an electronic will.
• For electronic wills, the will and any associated documents that are referred to in the will must all be saved together as a single document to be treated the same as a physical will that has other documents stapled to it.

Form P9 – Affidavit of Delivery

A section has been added that must be included if an application relates to an electronic will.  The section requires an applicant to confirm either that no one asked for their own original version of the electronic will or that an original was provided to anyone who requested it.

Form P22 – Application of Applicant for Resealing…

Like the P4, section 5 has been updated to reflect that a person must search for a will in both physical and electronic locations.

Form P45 – Affidavit of Electronic Will (New)

This form must be submitted if an applicant is submitting a copy (physical or PDF) of an electronic will.  It requires an applicant to confirm that the original electronic will was unaltered before they made a copy and explain how they confirmed this.

Form P46 – Demand for Electronic Will (New)

• This form is used to obtain an electronic original of a will by a person who receives notice of an application relating to an electronic will.  The form sets out the requirement for the applicant, when they receive the demand, to either give the sender their own original of the electronic will or provide access to the secure online location where the electronic original is stored, plus any costs to access the secure online location.
• The form notifies both the user of the form (person requesting the electronic will) and the applicant of the existing Notice of Dispute, which may be used to prevent the issuance of a grant where a person has concerns about the validity of a will.

Forms – Other

Form P2 – Submission for Estate Grant

• The wording of section 1 of Part 3 has been revised to address a “temporal issue” created by the previous wording,
  • The old wording of this section referenced affidavits in an application package having already been “made”.  However, the affidavit that this section was referring to required that the applicant swear that they had read the (completed) Form P2 and that everything in that Form was true.  A person could not say in the P2 that an affidavit was “made” if the only way to make the affidavit is to have completed the P2.
• All of the Schedules have been updated to clarify that a person only must “survive” the deceased and need not be living at the time of the application.

Form P3 – Affidavit … for Grant of Probate … (Short Form)

• All the requirements to qualify to file a P3 have been moved from Rule 25-3 (6) right into the Form
  • Previously some, but not all, of the requirements were in the form; so an applicant would have to refer to Rule 25-3 (6) to know if were able to file this simpler form.
• In addition, we have added a paragraph that requires an applicant to confirm that they are not aware of competing applications.  While registry staff do check for competing applications, there is no reason for applicants who are aware of such applications to not disclose this information, as it will help avoid registry staff unnecessarily processing an application that is unlikely to be successful and/or direct applicants to utilize processes to resolve the dispute about who should apply.

Form P5 – Affidavit … for Grant of Administration…

• As with Form P3, have added a requirement for an applicant to confirm that they are not aware of competing applications

Form P10 – Affidavit of Assets and Liabilities…

• Have revised Exhibit A to only require an applicant to list assets subject to probate fees.
• The table for Exhibit A has been reworked to be clearer and to reflect registry practice.
• A new Exhibit B has been added that allows an applicant to list land and tangible personal property outside of BC.

Form P11 – Supplemental Affidavit of Assets and Liabilities…

• The Exhibit A to this supplemental affidavit has been updated in the same manner as Exhibit A of the P10.

Forms P14, P15, P25, P26 – Non-domiciled/resealing Affidavit of Assets and Liabilities…

• The Exhibits to these Forms have all been updated in a similar manner as Exhibit A of the P10.

Form P21 – Submission for Resealing

• Updated to address the same temporal issue identified with the P2

Explanation of Probate Rule Amendments

Section 1 – Amending Rule 23-3 (5)

• Prior to amendment, paragraph (a) of Subrule (5) excluded probate documents that require the filing of an originally signed version of a will from being transmitted for filing electronically.  The amendment removes the reference to “[any document pertaining to] probate, other than documents respecting an application that, under Part 25, does not require the filing of an originally signed version of a will”.
  • This change ensures that applications that require the filing of an originally signed version of a will can be filed electronically
• However, paragraph (b) of Subrule (5) has been amended to add a sub-paragraph (viii) prohibiting an originally signed version of a physical will from being transmitted for filing electronically.
  • A physical will MUST still be filed in person or by mail.

Section 2 – Amending Rule 25-1 (1)

• Three new definitions are added for phrases that are used in Rules that are amended to address the filing and giving of notice related to electronic wills.
  • “physical will” is used to when it necessary to distinguish that a rule is referring to a will written on paper.
  • “subscribing witness” is used when a rule refers to witnesses that are electronically present – through Zoom, Skype, Google Meet, Facetime – as opposed to physically present.
  • “third-party electronic repository” refers to the likely advent of service providers who will store a secure original of an electronic will. 
    • This service is analogous to storing a physical will in a safe deposit box

Section 3 – Amending Rule 25-1 (7)

• This new subrule (7) clarifies when a will is deemed to be in its original electronic form for the purposes of the Rules.
  • As the Rules cannot override the statute it is important to note that the rules do not attempt to determinatively establish as a legal certainty whether (if) a will is an electronic original.  The definition in the legislation is intentionally broad and, if necessary, it will be up to a court to decide whether an electronic document is an original will.
    • Extraneous evidence from witnesses and computer experts may be necessary to establish whether an electronic document is a will, if the validity of the will is challenged.
  • However, the rules establish some general guidelines that are easy to understand by both a layperson and court registry staff.
    • For example, if a will is created in MS Word. Is electronically signed and then saved as a PDF then each unaltered PDF that is created and shared of the PDF is also considered an original will.  There can be multiple originals.
    • In contrast, if the will is signed and then saved as a MS Word “.doc” document and then later is saved as in PDF format the PDF will be considered a “digital reproduction”, essentially the equivalent of a photocopy.

Section 4 – Amending Rule 25-2

• Existing subrule (1) is split into a new (1) and (1.1), the general obligation to provide the will or the foreign grant remains the same.  The key addition is new paragraph (1.1) (b), which applies if the application relates to an electronic will, whether or not it relates to a new application or the recognition of a foreign grant.
• If an application relates to an electronic will then a person who receives notice is entitled to get their own will in its original electronic form, if they ask for (“demand”) a copy.
  • As noted above, because there can be multiple electronic documents that are each considered an original will it is not an onerous requirement for an applicant to have to share one an original with an interested party.  This obligation to share electronic originals allows the other interested parties to conduct their own review of the electronic document and/or have their own computer experts determine whether the will was altered or if there are other issues with the document.
• The new subrule (1.2) clarifies that a notice recipient either gets their own electronic document or, if the only electronic original is securely stored in an electronic repository, gets access to the electronic repository, so they can assess the security of the repository and make inquiries of repository staff, to satisfy themselves that the will stored in the repository is unaltered.
• The new subrule (1.3) clarifies that a notice recipient must use a standard form court document to request (demand) a will from an applicant
  • The use of a standardized form ensures that consistent language is used that draws particularly information to the attention of both the applicant who receives the demand and the person issuing the demand.
• The new subrule (1.4) clarifies that there is a 7 day time limit to provide the will in its original electronic form, this is because providing an original of the will should not be difficult and, ideally, we want the applicant to provide the will within the 21 day waiting period for applying for a grant, to give the person requesting the will a chance to assess the will and decide if they want to dispute the applicant’s right to apply for probate.

Section 5 – Amending Rule 25-2

• A new subrule (2.1) adds a requirement that an applicant wait 21 days after giving notice and any additional material, such as a will or a foreign grant, before submitting their application.

Section 6 – Amending Rule 25-2

• A new paragraph is added to subrule (3) requiring an applicant to explain why a copy of an electronic will that they provide with notice doesn’t have a visible signature.
  • This may occur where an electronic will is “signed” in an electronic manner, such as blockchain, that both identifies the signatory and secures the documents, but which may not have a physical manifestation.   An applicant only need provide a physical copy (printout) or digital reproduction of the will and this copy they provide will appear to be unsigned or will not have markings a layperson would normally associated with a signature.
  • Best practice would be for electronic will providers to ensure that when a will is signed there is a visible manifestation of the signatures; however, this rule ensures that if there are no visible signatures that an applicant explains in the notice why the recipient should not be worried, by providing background about how the will was electronically signed.
  • This is likely a situation where a person who receives notice may wish to request the will in its original electronic form by sending the applicant a P46 Demand.
  • Applicants may wish to proactively send a notice recipient the will in its original electronic form if there is no visible signature.  While this is not required by the Rule, it is also not prevented.

Section 7 – Amending Rule 25-2

• Subrule (10) is amended to expand the class of people to whom subparagraph (a) (ii) applies.
  • This Rule used to only apply to, “the equivalent of a committee appointed by a court outside British Columbia”.
  • The amended language ensures that this paragraph captures people who obtain their position by operation of statute in addition to those appointed by the court.

Section 8 – Amending Rule 25-3 (3)

• Subrule 25-3 (3) sets out the requirement to include a will with an application for a representation grant, if the deceased left a will.  The rule has been expanded to reflect the fact that, in addition to a physical signed by the will-maker and witnesses all in each other’s physical presence, an applicant may be submitting a physical will signed in counterpart or an electronic will.
  • A will is signed in counterpart when one or more witnesses is not physically present when the will-maker signs the will
    • The will-maker and witnesses are connected by Zoom, Facetime or another program that allows them to see and hear what is happening. 
    • In this case each witness who is not physically present with the will-maker will have their own physical copy of the will that they sign after witnessing the will-maker sign their copy of the will. 
    • All three separate copies must be combined (clipped together) in order to form a valid will.
  • If a will is signed in counterpart, the Rule specifies that all three originally signed copies of the will must be submitted; however, the Applicant only needs to make copies of the last signature page of each of the witnesses.
    • The court needs all three originally signed wills to verify the authenticity of the will (i.e., they will review to ensure that all three wills are identical and if there are any insertions, interlineations or deletions that the witnesses properly initialled these changes in their copy);
    • The copies provided by the applicant are used to create the grant and the grant only needs a complete copy of the will that the will-maker signed and the signature pages of the witnesses
      • This is because third parties relying on the grant do not need to separately verify the validity of the will (i.e., compare all the copies), they merely need to see the will was witnessed and they can use the will-maker’s copy to verify that the will applies to the property in their possession.
  • A will is an electronic will if it is signed and saved in an electronic format.
    • Witnesses to an electronic will may or may not be physically present with the will-maker signs the will, for example:
      • It is possible that everyone is in the same room while the will-maker digitally signs the will and then they similarly sign the will electronically before the document is saved.
      • It is possible the everyone is in different locations and is remotely connected; however, because of the nature of digital signatures, each witness can sign the same document before it is saved.
  • If a will is in an electronic form, then the general rule requiring the original will be filed unless it cannot be found has been modified.  Currently the court registry can only accept PDF documents; therefore, if a will is in a document format other than PDF the applicant must submit a copy of the will along with an extra affidavit explaining how they verified that the electronic document was not altered before they printed off a copy to submit or saved a copy in PDF format to submit (if an applicant is submitting a copy of an electronic will then it doesn’t matter if this copy is a physical copy or a digital reproduction in PDF format).
  • If a will is stored in an online electronic repository, then an applicant is allowed to file a physical copy or a digital reproduction in PDF format and must disclose the online location of the repository, so that registry staff can visit the repository themselves to see the original will.
    • A will being stored in an online electronic repository is analogous to storing the original of a physical will in a safe deposit box, but you can only take the will out of the box to view it or make a photocopy, you’re not allowed to remove the will from the safe.  Thus, the applicant is only able to provide the registry with a copy and the ability to see the original will.

Section 9 – Amending Rule 25-3 (5)

• This subrule sets out a requirement that all documents submitted be separate (i.e. not all stapled together). It is amended to specify that it only applies to a physical will to prevent any confusion
  • This is because it is common to refer to electronic documents being “attached” to each other when they maintain their separate identity.
  • Essentially, the court registry doesn’t need to worry about staple holes or handling of documents if they are submitted in electronic format, so this Rule doesn’t apply.

Section 10 – Amending Ru1000le 25-3 (6)

• This paragraph has been amended to focus the ability to file a Form P3 (Short Form) Affidavit on whether the applicant is requesting that a document be recognized as a military will, as opposed to the current wording of the paragraph that appears to require an applicant to make a conclusive (legal) determination about whether the document is, in fact, a military will (and, in turn, make a conclusive statement about this in the Form P3).
  • Instead the revised wording in this Rule (and in the revised Form P3) focuses on confirming that the applicant does not wish to submit a document, that does not otherwise meet the requirements of Division 1 of Part 4 of the Wills, Estates and Succession Act, to be accepted as a valid will on the basis that the document complies with the requirements set out in section 38 of the Wills, Estates and Succession Act to be recognized as a Military will. 
    • If an applicant wants a non-compliant document to be accepted as a will because of section 38 of WESA then they need to submit a Form P4 (Long Form) Affidavit to explain to the court why the document complies with s.38, and the court will then determine whether the document is in fact a military will.
  • Another problem with the prior wording is that, in theory, a will could BOTH be a military will, executed in accordance with section 38 WESA (i.e., made by a member of the Canadian Forces while on active service), AND comply with the requirements of Division 1 of Part 4 of WESA to be accepted as a valid will (i.e., two witnesses and the will-maker, signing the will at its end) in this instance the Rule would, theoretically, prohibit an applicant from applying using the easier Form P3 Affidavit, even though they have no intention, need, to ask the court to recognize the will as a military will

Section 11 – Amending Rule 25-3 (14)

• Subparagraph (i.1) is added to paragraph 25-3 (14) (a) to add a specific requirement that an applicant search electronic devices and third-party electronic repositories used by the deceased
  • Arguably the current paragraph (14) (a) and subparagraph (a) (i), which requires an applicant to search, “in each place that could reasonably be considered to be a place where a testamentary document may be found” and “in all places where the deceased usually kept his or her documents” respectively, are broad enough to require an applicant to search electronic devices and third-party electronic repositories.  However, because this is a new obligation it is useful to include a specific reference to these new locations in the non-exhaustive (“…without limitation…”) list set out in paragraph (a).

Section 12 – Adding Rule 25-3 (22.1)

• This subrule has been added to give a registrar the ability to require an applicant to submit an affidavit confirming that an electronic will was not altered before it was filed, if the original will was saved in an unlocked (i.e., editable) PDF format.
  • This requirement is separate from the requirement that an applicant submit an affidavit if they are submitting a copy of an electronic will that was saved in a format other than PDF format.

Section 13 – Adding Rule 25-3.1 and Rule 25-3.2

• Rule 25-3.1 has been added to formalize the process for amending an application.  Currently, amendments are handled on an ad-hoc basis and the requirements vary by registry.
• This new Rule will establish consistent processes that can be relied upon by applicants who realize they need to amend their application.  If an applicant needs to amend an application before a grant (or authorization to obtain estate information) has issued they must:
  • Submit an amended application document (i.e., Submission For Estate Grant and/or affidavit(s)) with deleted wording shown as struck out and any new wording underlined
  • Indicate on their amended application when the original application was filed (to help the registry match up the documents with the correct file)
  • If the Submission for Estate Grant is being changed then a new affidavit must also be submitted swearing that the information in the amended Submission is correct.
• Rule 25-3.2 has been added to formalize the process for withdrawing an application.  Again, amendments are currently handled on an ad-hoc basis and the requirements vary by registry.
  • To withdraw an application an applicant simply must file a (new) Form P44 with the court, which formally states they wish to withdraw their application, and deliver a copy of the Form P44 to everyone to whom they gave notice of their intent to apply for a grant.

Section 14 – Amending Rule 25-4

• A new subrule (1.1) has been added specifying what must be attached to an estate grant.
  • Currently a copy of the will is attached to a grant as a matter of practice.  There was no Rule specify this practice.
  • The new subrule specifies what must be attached to a grant depending on whether the will is:

(1) a physical will,

• A copy of the will must be attached

(2) a physical will signed in counterpart (i.e., when one or more witnesses was present electronically)

• A copy of the will that the will-maker must be attached along with copies of the last signature pages of the witnesses

(3) an electronic will.

• A physical copy of the electronic will must be attached

Section 15 – Amending Rule 25-6 (11)

• The requirements to search for the deceased’s will have been updated in this Rule, which applies to applications to reseal a foreign grant, in a similar manner as the search requirements for a “regular” grant set out in Rule 25-3 (14).
  • Essentially, the changes merely specify that there is a requirement to search electronic devices and third-party electronic repositories used by the deceased.

Section 16 – Amending Rule 25-14

• Two paragraphs have been added to Subrule 25-14 (1), which sets out how to apply for most applications related to grants and grant applications.
  • The new paragraph (s) allows a person to apply to have the court waive the requirement to search an electronic device(s), even if the device(s) were used by the deceased to store important documents.
    • An applicant may make such an application where the device has been secured (i.e. password protected or otherwise locked) and the applicant does not have the ability to access device (password or security key).
      • A court may grant such an application where the cost of having an expert “hack” the device would represent a significant amount of the estate and/or where an uncontested copy of the deceased’s last will is available
  • The new paragraph (t) has been included to allow a person to ask the court to be allowed to amend an application in a manner other than as set out in the new Rule 25-3.1.
    • Given the minimal obligations imposed by Rule 25-3.1, it is unlikely that an applicant will need to make an application under this paragraph; nonetheless, it is beneficial for an applicant to at least have a clear ability (and direction on how) to apply to vary the standard procedure if an unanticipated issue arises

Section 17 – Amending Rule 25-15

• A new Subrule (5) has been added to Rule 25-15 to specify that if there are any costs associated with accessing a third-party electronic repository then the applicant (deceased’s estate) must pay for a recipient of an application for a representation grant to access the original will.
  • It is unclear what funding model may be used by online will repositories, we do not want individuals with an interest in the deceased’s estate to be discouraged from accessing an original copy of the deceased’s will (and verifying for themselves its authenticity) due to costs imposed by third parties.