Saskatchewan, Step Up to the Plate on Electronic Wills

I. LEAD OFF

It is common knowledge that modern computers and the world wide web have crept into every aspect of our lives. Whether you are sending your best friend a potato in the mail,¹ checking in on your fur baby,² or becoming a duke or duchess of the world’s smallest illegitimate nation,³ the odds are if you are not already doing it online, you have the option to. However, in Saskatchewan there is one thing you cannot manage or plan for with technology, your own estate.

Upon your death, you currently have two options to set out what will happen with your assets. The first is to execute a physical will and decide who will receive your worldly possessions. This can be done by executing a will that conforms with the formal requirements in s. 7 of The Wills Act, 1996⁴ or by preparing a holograph will under s. 8 which requires that it be “wholly in the handwriting of the testator.”⁵ The second option is to not have a will and instead allow intestate succession laws to do the planning for you. This second option is not ideal as although The Intestate Succession Act, 1996⁶ is meant to mimic what intestate individuals would have done had they made a will,⁷ it is arbitrary⁸ and may not bear any resemblance to the actual intentions of the testator.

Fortunately for the residents of Saskatchewan, there are at least two significant pieces that advocate a third option to avoid intestacy, creating an electronic will. The Law Reform Commission of Saskatchewan released their paper entitled Report on Electronic Wills⁹ in 2004 which advocated for the recognition of electronic wills in Saskatchewan, and a decade later Katherine Melnychuk did the same in her Saskatchewan Law Review article entitled “One Click Away: The Prospect of Electronic Wills in Saskatchewan.”¹⁰ This comment will build off of their work by first discussing the urgent need for electronic wills in our digital age and then consider how blockchain technology could help this cause.

II. INTESTACY: THE FOUL BALL OF ESTATES

The Commission Report considered whether recognition of formal requirements for electronic wills would meet an existing need.¹¹ At the time of the Commission Report, it was found that neither the legal profession nor the public had any more than a mere interest in electronic wills.¹² Further, the Commission Report went on to cite the Uniform Law Conference as stating “it does not seem likely that the recognition of computer-generated wills in electronic form would result in significant cost savings to testators.”¹³ This same lukewarm sentiment to electronic wills is also echoed in Melnychuk’s paper where she states that “electronic wills [are] arguably not an urgent matter”¹⁴ and that “[u]ntil the demand and necessity for electronic wills grows in Saskatchewan, the legislature should consider modifying the substantial compliance doctrine to allow electronic wills.”¹⁵

Although I agree with the recommendations that the above works put forward (that electronic wills should be recognized by modifying the substantial compliance doctrine of The Wills Act, 1996¹⁶), neither of these papers stress the injustice that our current model promotes. Currently, many people die without any form of will, leaving their life’s work in the hands of the state to distribute according to an arbitrary and out of date system.¹⁷ In fact, one study found that 56% of Canadian adults do not have a will and, perhaps even more relevant to this discussion, 88% of those between the ages of twenty-seven and thirty-four do not have wills.¹⁸ There is only one explanation for these high rates; people feel that such legal documents are too burdensome, expensive, and inconvenient. It is therefore essential that wills become easier for the average person to prepare as intestacy is the foul balls of estate law, we don’t like them, but they happen way too often. Whom one leaves their assets to is a very important decision, it seems illogical to not give individuals every opportunity to make that decision for themselves, and electronic wills are one tool that may be used to encourage people to opt out of intestacy.

Rather than waiting for people to be knocking on the doors of the legislature for electronic wills to be permitted (which is unlikely to happen), let us listen to the wise words spoken in Field of Dreams, “If you build it, he will come.”¹⁹ Although people may not yet be demanding the option of electronic wills, it is surely coming and is essential to ensure that people’s dying intentions are recognized.

III. BLOCKCHAIN: A SECURITY DOUBLE PLAY

A further point for electronic wills to promote estate planning and avoid intestacy, is there has never been a better time than now to create a secure electronic record that will stand the test of time. One example of this is blockchain technology. Blockchain is the technology behind bitcoin, and in an overly simplified explanation, works by linking multiple computers together and saving a fragment of the information on each device along with a time stamp.²⁰ This unique system gives blockchain the ability to perform a double play by being immutable and hack resistant,²¹ aspects of electronic storage that are paramount for important and sensitive documents like wills or powers of attorney.

At the time of the Commission Report, advanced cloud technology such as blockchain was not available and there was some concern over the reliability of available formats that electronic wills could be stored in.²² Blockchain could overcome these concerns and potentially allow the law to create formal requirements for electronic wills, as such technology is widely available through services such as Storj²³ and Amazon S3.²⁴ On this basis it is time to act on the advice given over a decade ago by the Law Reform Commission of Saskatchewan and consider not when, but how electronic wills should be recognized in Saskatchewan.

IV. HOME PLATE

It is time that the Saskatchewan Legislature step up to the plate and build a modern system for the recognition of wills. The technology exists, and there is a need for more estate planning options. As my dad has always told me, “there are two kinds of people in this world, leaders and followers. Which one do you want to be?” Saskatchewan, I think the choice is clear, let's lead the change that is coming to the area of wills as “[t]he pace of technological change can be ignored only at peril.”²⁵

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^* JD Candidate (University of Saskatchewan).

¹ Potato Parcel Canada, online: <https://ca.potatoparcel.com/>, archived: <https://perma.cc/8Y7J-ULNP>.

² Furbo, online: <https://shopca.furbo.com/?gclid=EAIaIQobChMIy9j178_x2AIVCqtpCh1xeAjXEAAYAiAAEgIsXvD_BwE>, archived: < https://perma.cc/9EL7-BUA2>.

³ Principality of Sealand, online: <https://www.sealandgov.org/shop/titles-ids/sealand-citizenship-passport/>, archived: < https://perma.cc/XK6S-RRZG>.

⁴ SS 1996, c W-14.1.

⁵ Ibid.

⁶ SS 1996, c I-13.1.

⁷ Law Reform Commission of Saskatchewan, Reform of the Intestate Succession Act, 1996, Consultation Paper (Saskatoon: LRCS, August 2016) at 6 [Saskatchewan 2016].

⁸ Law Reform Commission of British Columbia, Report on Statutory Succession Rights (Vancouver: LRCBC, December 1983) at 14.

⁹ (Saskatoon: LRCS, October 2004) at 33 [Commission Report].

¹⁰ (2014) 77:1 Sask L Rev 27 at 43.

¹¹ Supra note 9 at 23-25.

¹² Ibid at 24.

¹³ Ibid.

¹⁴ Supra note 10 at 27.

¹⁵ Ibid at 43.

¹⁶ Ibid; Commission Report, supra note 9 at 30-32; supra note 4, s 37.

¹⁷ For example, the spouses preferential share has not been updated since 1990 (Saskatchewan 2016, supra note 7 at 50). For an in-depth discussion of this topic see Thomas Fransoo, “Spread the Spousal Love: A Proposal for Increasing the Spouse’s Preferential Share Under The Intestate Succession Act, 1996” (2018) 81:1 Sask L Rev 1.

¹⁸ LawPRO, “Survey: More than Half of Canadians Do Not Have a Signed Will”, online: <https://www.lawpro.ca/news/pdf/Wills-POAsurvey.pdf>, archived: <https://perma.cc/HWE4-Y2VY>.

¹⁹ 1989, DVD (Los Angeles, Cal: Universal Studios, 1989).

²⁰ Caitlin Moon, “Blockchain for Lawyers Part 1” (10 January 2017), Law Technology Today, online: <http://www.lawtechnologytoday.org/2017/01/blockchain-101-for-lawyers-part-1/>, archive: <https://perma.cc/CK3V-AWR2>.

²¹ Ibid. It is “immutable” because every entry is time stamped and any attempt to change a time stamped piece of information will be rejected by the other devices in the chain. Blockchains are hack resistant because the data is stored across an entire network, meaning a hacker would have to attack all the devices simultaneously. Additionally, data saved is “hashed” meaning that the data itself is not stored, but rather a condensed version of the data. Note, however, that this is an overly simplified explanation.

²² Supra note 9 at 15-17.

²³ Storj Labs Inc., online: <https://storj.io/index.html>, archived: < https://perma.cc/NAH7-3T52>.

²⁴ Amazon Web Services, Inc, online: <https://aws.amazon.com/s3/>, archived: <https://perma.cc/PUF6-VSWA>. In fact, Amazon claims that its system “is designed to deliver 99.999999999% durability.”

²⁵ Commission Report, supra note 9 at 13.