Today’s blog was written by K. Thomas Grozinger, C.S., LL.B., TEP, Principal Trust Specialist with RBC Royal Trust

Our lives continue to be impacted by rapid changes in technology. In an era where many aspects of daily living involve interaction with some form of electronic or digital media, even estate planning and estate administration are not immune to the developments of the Information Age.  As evidence of just how pervasive digital technology has become, a recent Saskatchewan court decision supports the view that substantial compliance legislation can (unless otherwise prohibited) be used to declare an electronic message sent from an electronic device to be the last Will of the user.

In Haines v Kuffner Estate, the Deceased, Kim Kuffner, was admitted into hospital after a fall.  While in hospital, her condition worsened to the point that she passed away.  Affidavit evidence indicated the that Deceased could no longer speak nor could she write because of lack of strength to hold a pen.

A digital Will?

However, the Deceased was able to communicate with family via her iPad and, as she knew that her death was immanent, she typed (lightly tapping with stylus pen) the following message, which her sister received:

My holographic will

Rheanne Haines to be executor.

House and contents to Ryan Haines.

Balance of investments to be split 60% to Ryan Haines and 40% to Rheanne Haines. Rheanne to be pet guardian.

May 19, 2023. Kim Kuffner

The Deceased died on May 21, 2023. Rheanne and Ryan were the Deceased’s niece and nephew respectively.  The Deceased was never married and had no children.  She was survived by her mother and three siblings, although her mother subsequently died intestate on January 13, 2024, and one of her sisters (being the mother of Rheanne and Ryan) also died on February 10, 2024.

If the Deceased were considered to have died without a Will, then her estate would belong to her mother.

The decision noted that a search of the Deceased’s home did not reveal any other testamentary document or Will.

The issue

The court had to decide was whether the Deceased’s iPad message was a valid testamentary document despite failing to meet the formal requirements for a properly executed Will under Saskatchewan’s The Wills Act, 1996 (the “Act”).

Justice Klatt examined the law surrounding the application of substantial compliance legislation.  The propounder of a non-compliant document has the onus of providing evidence of the deceased’s testamentary intentions.

The court referenced earlier decisions which indicated that at least some measure of compliance with the formal requirements was required in order for s.37 of the Act to apply. However, the judge was of the view that the s.37 substantial compliance provision could apply even where the document being propounded failed entirely to comply with the formal requirements under the Act.

The decision

For Justice Klatt, the paramount consideration is intent rather than form when deciding on whether a document is testamentary in nature.

“It is the testator’s true intentions behind the document that is paramount, not the form of the testamentary document used by the testator. With that focus at the heart of the analysis, it is obvious that every case will be decided on its unique facts.”

The decision noted that all parties agreed that the Deceased’s messages represented her testamentary intention and no one disputed that messages were sent by Deceased from Deceased’s device. Further, there was no evidence of cognitive decline; the Deceased was aware of her imminent death.

Justice Klatt commented that statements in the Deceased’s message about how her estate was to be divided supported an intention that the message was to be her Will;  it was titled “My holographic will,” named an executor, provided for a scheme of distribution, named a pet guardian, and concluded by typing the date and her name at end. In addition, the judge observed that the Deceased’s other messages reflected concern about getting her affairs in order before immanent death.

Although the Deceased could not satisfy the requirements for a holographic Will due to her state of health, Justice Klatt was of the view that the iPad message was testamentary in nature and could be validated under s.37 of the Act

What did we learn from this case?

• The Wills Amendment Act, 2023, SS 2023, c 45 received Royal Assent on May 17, 2023, but not proclaimed in force at time of decision. This amendment authorizes digital or electronic Wills.
• Despite the amendment not being in force, this case stands for the proposition that Saskatchewan’s substantial compliance legislation already allowed for authentication as a Will a document that is wholly created by digital platform so long as it manifests a testamentary intent that represents the deliberate and final intentions of the testator and the words used are sufficiently clear to allow the court to interpret it with some certainty (although query whether the fact that the digital message was signed by the Deceased was a crucial factor in this regard).
• However, it will remain to be seen whether courts in the other jurisdictions having similar substantial compliance legislation will come to similar conclusions regarding digital messages.
• What also remains to be seen is the level of due diligence courts will expect when it comes to searching a deceased’s digital devices/records for potential messages that could be validated as testamentary instruments (e.g., proof in solemn form proceedings).

Note: for Ontario, electronic wills are prohibited [see ss.21.1(2) of Ontario’s Succession Law Reform Act whereby electronic wills are carved out by making the substantive portion of s.21.1 subject to s.31 of Ontario’s Electronic Commerce Act, 2000

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