Remote Online Witnessing
Remote online witnessing has become a popular option for executing wills since the onset of the COVID-19 pandemic, as it allows individuals to execute their wills without the need for in-person gatherings. While the largest impetus for this change in procedure during the pandemic has been health and safety. Lawyers have pushed for remote and technological options for will execution since before 2020, and have continued to advocate for new developments since. Digital will execution options like electronic wills and signatures, fiduciary access to digital assets, and remote online witnessing (ROW) have the potential to increase access to estate planning tools and protect the assets of a greater array of people of all financial backgrounds.
To be valid, the execution of a will through remote online witnessing must comply with the requirements of the applicable legislation. In Canada, the requirements for executing a will depend on the provincial jurisdiction in which the will is being executed. Some jurisdictions, such as Ontario, first released emergency Orders-in-Council to allow for the execution of wills through electronic means during the COVID-19 pandemic. They have continued by enacting permanent legislation, such as the Accelerating Access to Justice Act, 2021. In other jurisdictions, the execution of wills through electronic means may be governed by the general provisions for electronic documents or may require the testator to seek a court order to validate the execution of the will. When executed correctly according to a testator’s jurisdiction, ROW can be a much more flexible and practicable option for testators, witnesses, and notaries.
However, this new legal territory has begun to raise several red flags for estate attorneys. Firstly, the possibility of undue influence in the execution of a will remains a concern when using remote online witnessing, as the testator may be more vulnerable due to the lack of in-person interaction and the potential for manipulation through technology. Moreover, like any process that involves handling sensitive documents and personal information on the internet, there is a risk of fraud. There is also a risk of technical issues such as internet connectivity problems or equipment failure, which can disrupt the remote online witnessing process and potentially invalidate the documents being witnessed. Finally, there is a risk that the documents witnessed remotely may be challenged in court on the grounds that the process was not conducted properly, as courts have yet to grapple fully with the new wave of digital estate administration legislation.
Undue Influence
Undue influence is an equitable doctrine with far-reaching roots in Canadian and English common law jurisprudence. As defined by Wingrove v. Wingrove (1885), 11 P.D. 81, undue influence is predicated on coercion. In the context of will execution, one party’s coercive influence can persuade the testator to make a will that benefits the influencer or disinherits someone who would otherwise inherit under the will. In the case of remote online will execution, the risk of undue influence may be higher due to the distance that remote interactions inherently place in between interactions. A party exercising undue influence may be more easily able to hide their coercion outside the view of the remote witness or estate attorney, or manipulate a witness’s perception of the will execution because they are not physically present.
To prevent undue influence in remote online will execution, it is important for the witnesses to follow proper procedures and use all available security measures to verify the identity of the testator and the authenticity of the will. Additionally, the witnesses should observe the testator's behavior during the execution of the will to ensure that they are acting of their own free will and are not being pressured or manipulated by anyone. Certain provinces have also included various extra requirements in their virtual witnessing amendments that are meant to make the process more secure. For instance, under Ontario’s amended Succession Law Reform Act, one of the witnesses in a virtual remote will execution must be a licensed lawyer under the Law Society Act. Hopefully, provincial lawmakers will craft witnessing requirements that successfully straddle the line between ROW’s objective of increased accessibility and protecting against potential testator abuse.
Fraud
Fraud is another potential risk of the new ROW wave. To prevent fraud, remote online witnessing processes typically include several security measures to verify the identity of the individual seeking to have their will witnessed, as well as the authenticity of the will. For example, the witnesses may ask the individual to present identification documents and may use technology such as biometric authentication to verify the identity of the individual. Additionally, the witnesses may use document authentication software to verify the authenticity of the will and the testator’s and witnesses’ signatures. Finally, testators and witnesses may both choose to video record the execution process in order to ensure its legitimacy in the case of a will contest.
On the other hand, various companies are committed to ensuring that ROW has the opposite effect: reducing the risk of fraud in will executions. Various new online will execution platforms have built-in fraud detection and prevention mechanisms. This includes Knowledge-based authentication (KBA) questions, also commonly employed by financial institutions, to prove a testator and witness’s identity by requiring parties to provide sensitive information that can prove their identities. KBA may be especially pertinent to future will executions where testators may have digital assets and digital wills, in which KBA software can use dynamic KBA to ask them questions about their personal digital information that they have not provided previously. When done with reputable and secure software, ROW can arguably reduce the risks of will fraud.
Technical and Legal Issues
There are several technical issues that can arise when conducting ROW that can disrupt the process and potentially invalidate a testator’s will. Some common technical issues include internet connectivity problems, equipment failure, latency, cybersecurity threats, and a lack of due execution. ROW relies on a stable internet connection to facilitate audio-visual conferencing. If the internet connection is poor or intermittent, it can disrupt the process and make it difficult to complete the witnessing properly. This problem especially affects rural, Indigenous, elderly, and immigrant groups, who statistically have much less access to high-speed broadband and information and communication technologies (ICTs). For instance, as of 2022, only 54% of rural communities in Canada have access to high-speed internet. Groups without adequate access to technology are also at risk of their equipment, such as cameras or microphones, being disrupted during ROW, or their video-conferencing technology experiencing delays in transmission. Closing the digital divide is crucial to democratizing services like ROW and ensuring more Canadians have estate plans.
Cybersecurity threats are another risk to ROW procedures. Hackers and malware can potentially compromise a testator or witness’s online security and the confidentiality of the testamentary documents being witnessed. Confidentiality in will execution is crucial to safeguarding a testator’s ability to exercise their testamentary freedom and dispose of their property as they wish. Moreover, if for any of the above reasons an interested party can claim that a testator or witness did not execute the will properly, they may invalidate the will. Although new legislation provides requirements for ROW, courts have not yet begun to grapple with harmless errors or substantial compliance with wills formalities in their jurisprudence. Future case law may shine a light on the legal viability of audio-visual conferencing technology, the acceptable limits of latency in the execution process, and the use of online witnessing software.
Conclusion
While remote online witnessing of wills can provide a convenient option for individuals who are unable to physically meet with witnesses, it is vital to be aware of the potential risks associated with this process and areas for improvement in accessibility. Things to look out for in the future include the possibility of fraud and identity theft, undue influence, technical issues, and legal challenges. To minimize these risks, it is crucial to work with reputable witnesses and follow proper procedures to verify the documents' authenticity and the testator's free will. Additionally, using security measures such as biometric authentication and document authentication software can help to ensure the integrity of the process.
While ROW can offer certain benefits, it is important to carefully consider whether a testator is a suitable candidate to use new technologies to execute one of the most important pieces of personal documentation they have. Ultimately, ROW is an important development for the future of estate planning: it is convenient, time efficient, cost effective, and enables greater access to will execution services. Hopefully, as ROW becomes a more common option for estate planning, legislators, courts, and estate administration service providers will meet this development with greater protections, procedures, and technologies.
