HomeEstate LitigationContesting a Will with Electronic Records: Navigating the Legal Landscape

Contesting a Will with Electronic Records: Navigating the Legal Landscape

Conor Kopczynski

The process of ensuring the fulfillment of a loved one’s wishes after their passing can be a complex and emotional journey. This becomes even more challenging when the deceased is intestate or when codicils come into play, modifying or revoking certain provisions of their Will. In today’s digital age, where emails and text messages have become prevalent forms of communication, beneficiaries of a Will may seek to utilize these electronic records to demonstrate the true intent of the deceased.

However, validating an electronic communication as a legally binding holograph Will poses a significant hurdle. According to section 16 of the Wills and Succession Act, SA 2010, c W-12.2, for a holograph Will to be deemed valid, it must be entirely handwritten by the testator and signed without the presence or signature of witnesses or any other formalities. Here lies the apparent problem – electronic communications lack the testator’s physical handwriting.

To address this issue, section 37 of the Wills and Succession Act grants the Court power to deem a writing as a valid Will or a revocation of a Will, even if it does not comply with section 16. For the Court to invoke section 37, “clear and convincing” evidence must be presented by the beneficiary, establishing that the writing reflects the testator’s testamentary intentions and was intended to serve as their Will or a revocation thereof.

Furthermore, section 39 of the Act provides the Court with the authority to rectify an unsigned Will, given there is “clear and convincing” evidence that the testator intended to sign it but failed to do so due to an honest mistake or oversight. The Court must also be satisfied that the testator intended for the writing to be legally recognized as their Will.

While the language of section 37 seemingly opens up a potential avenue for beneficiaries to use electronic communications to showcase the testamentary wishes of the deceased, the situation in Alberta is not as favorable. Unlike other provinces that have allowed electronic communications to stand as valid codicils, the Alberta Court of Appeal has taken a different stance on this matter.

In this complex legal landscape, understanding the intricacies of challenging a Will with electronic records becomes crucial. Navigating the specific rules and interpretations within your jurisdiction is essential for beneficiaries seeking to uphold the true intentions of their loved ones.

Court of Appeal Case Law: Setting Precedents and Limitations

Examining the Court of Appeal’s notable decisions sheds further light on the complex landscape surrounding the validation of electronic records in Alberta.

Hood v South Calgary Community Church, 2019 ABCA 34

In the case of Hood v South Calgary Community Church, the Court of Appeal upheld the chambers judge’s view that the dispensing powers granted under section 37 of the Wills and Succession Act were relatively limited when compared to other jurisdictions. The Court concurred that section 39, which deals with rectifying unsigned Wills, conveyed a strong indication that the Court’s authority to add a signature should be narrowly interpreted (paras 14-15).

Notably, the Court emphasized that the relationship between sections 37 and 39 was unique to Alberta, underscoring the distinct approach taken by the province (para 15).

In Hood, arguments were presented that the advancements in technology and the need to address access to justice concerns should grant the Court broader discretion to rectify or validate Wills. It was contended that other provinces had adopted a more expansive approach. However, the Court of Appeal firmly stated that Alberta’s approach differed from that of the Uniform Conference of Canada, Manitoba, New Brunswick, Nova Scotia, Saskatchewan, Prince Edward Island, and British Columbia (para 26). Consequently, the case law from these provinces, which operated under different legislative frameworks, offered limited guidance.

McCarthy Estate (Re), 2021 ABCA 403

Another notable Court of Appeal case, McCarthy Estate (Re), echoed the stance taken in Hood. In McCarthy, the Court reaffirmed that the requirement of a written document could not be disregarded. Oral and electronic records alone would not meet the necessary standards for validation (para 8).

These Court of Appeal decisions reinforce the limitations and strict interpretations applied to the validation of electronic records in Alberta. While arguments for a broader scope persist, it is important to navigate the legal landscape within the confines of the province’s legislation and the precedents set by the Court of Appeal. Understanding these limitations is vital for individuals involved in the challenging process of upholding a loved one’s testamentary intentions.


In conclusion, navigating the intricacies of challenging a Will with electronic records requires a comprehensive understanding of Alberta’s legislation and precedents. While technological advancements and access to justice concerns may suggest a broader latitude for validating or rectifying Wills, the current legal landscape in Alberta remains stringent.

Given the complexities involved, it is highly advisable to seek professional legal guidance. At Vogel LLP, we have significant experience in estate and probate matters and hold a deep understanding of Alberta’s specific laws and regulations. By booking a consultation with our team, you can receive tailored advice and guidance to navigate the challenging terrain of contesting a Will with electronic records. Our team is here to provide the assistance you need during this delicate and important process.

2023-07-12T19:53:32+00:00August 8, 2023|Estate Litigation|
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