This blog was written by Adam Settecase

We are living in the hyper-digital age. As a result of the COVID-19 pandemic, the formalities for executing wills have been modified in many jurisdictions to allow for virtual witnessing via videoconference. An attestation by a witness who is not even remotely in the same location as the testator would have been unthinkable as recently as two years ago. The Barreau du Québec has recently issued a set of guidelines stating that “Electronic signatures of the testator and witnesses are permissible as long as the technology used permits identification of the testator and witnesses and confirmation of the testator’s consent.”[1]

With the advent of such increased digital flexibility, a 2022 Quebec Court of Appeal decision has addressed the question:

“Can a will be made by e-mail?”

The recent case of Damary v. Bitton[2] presents a sad story of a man suffering from COVID-19 who prepared his last wishes as to how his estate should be devolved via email to his notary but passed away before being able to physically sign. Mr. Bitton had made a previous will in 1989 but wished to execute a new one on his deathbed. The text of the e-mail to his notary was submitted to the Court (it has been translated from the original French version):

On Saturday, March 28, 2020, 07 :51:48 p.m. EDT, samy bitton < […]@icloud.com  > wrote:

I am sorry to be in this situation

I am in hospital and I do not know when I will be leaving

 

Jaques all that I own is in the name of my children

My will

40% to my 18 grandchildren and to Amar and Noa 10%

10% to Daniella 10% to Nerly

25% to Dvir

15% to Snir

Nerly has 2 residences petah tikva and kiryat ata

Dvir his house

Snir his house

W in Tel-Aviv to Daniella

[…]

Dvir and Snir will administer all 40 % for the grandchildren and they alone shall have the authority

Thank you

I hope that you will be able to have me sign

Even if this is not my signature

Goodbye

Sent from my iPhone[3]

Justice Gaudet of the Quebec Superior Court held that the e-mail did not constitute a valid will and refused to accept the telephone conversations between Mr. Bitton and his notary as bearing witness to the will.[4] The case was appealed to the Quebec Court of Appeal and in Damary v. Bitton, the three justices summarily upheld the ruling of the Superior Court.[5] The Court of Appeal ruled that the e-mail did not meet the formal requirements for a will under the Quebec Civil Code, most notably that there was no signature and that there were no witnesses to the will.[6] The court upheld the ruling that the quote in Mr. Bitton’s e-mail “I hope that you will be able to have me sign, Even if this is not my signature” did not constitute an electronic signature.[7] The 1989 will prevailed as his last will and testament.

One could easily examine the brief appellate judgment and dismiss any other interpretation of the law upon reading para. 13: “[…] the judge correctly applied the law in its current state.” However, note the wording “the law in its current state” [emphasis added]. The Quebec Court of Appeal effectively leaves the door open for a legislative amendment that would even further relax the formalities required for a valid will. An interesting aspect of both the Superior Court and Court of Appeal decisions centers around the discussion of the Civil Code of Québec article 714[8]:

A holograph will or a will made in the presence of witnesses that does not fully meet the requirements of that form is valid nevertheless if it meets the essential requirements thereof and if it unquestionably and unequivocally contains the last wishes of the deceased. [emphasis added]

CCQ 714 already provides judges with latitude to validate wills that lack certain formal requirements. The intention of this law is to provide courts with flexibility in recognizing wills.

Before the Superior Court, it was argued that Mr. Bitton’s e-mail created an animus testandi[9], a Latin term meaning “testamentary intention”[10]. However, there was no formal electronic signature attached to Mr. Bitton’s e-mail. This leads us to wonder if in the future, a verifiable and authenticated electronic signature at the end of an e-mail could become legally accepted in Quebec as valid in the execution of a will. The Court of Appeal in para. 13 states that:

“The Appellant may well be correct in arguing that these challenges as well as advances in technology, may one day require the courts to reconsider the circumstances in which Article 714 CCQ may be applied.”[11]

In summary, the answer to the question: “Can a will be made by e-mail in Quebec?” is at the present time a clear no. If there is no signature, there is no will. However, given the expansion of the use of technology in executing wills over the past several years, as well as the Barreau du Québec’s novel acceptance of electronic signatures in testamentary documents, we may well see wills drafted and electronically signed by e-mail become a possibility in the future. Only time and legislation will tell.

[1] https://www.cba.org/Sections/Wills,-Estates-and-Trusts/Resources/Resources/2020/COVID-19.

[2] Damary c. Britton, 2022 QCCA 349.

[3] Britton c. Britton, 2021 QCCS 4649 at para 28.

[4] Ibid at paras 38-40.

[5] Supra note 2.

[6] Ibid at paras 13-14

[7] Ibid at paras 12-14.

[8] Civil Code of Québec art 714 [CCQ 714].

[9] Supra note 3 at para 36.

[10] Black’s Law Dictionary, 8^th ed sub verbo “animus testandi.

[11] Supra note 2 at para 13.