Need a Will? Now there’s a way…..

 In Estate Planning, Uncategorized

In these challenging times of COVID-19, it has brought a new issue to light…. What if you need a Will? How can you execute one if it is required to be signed in the presence of two witnesses?

There is some good news, on April 7, 2020, the Lieutenant Governor in Council made an order under s. 7.0.2(4), of the Emergency Management and Civil Protection Act permitting virtual witnessing for Wills and Powers of Attorney.

What this means:

*The Order is not retroactive, meaning that any Will and/or Powers of Attorney previously signed virtually is not valid and must be signed again.

*The order is only in place for the duration of the declaration of emergency. Once the declared emergency ends, virtual signing will end and in turn, will no longer be possible.

*One of the two witnesses MUST be a licensee of the Law Society of Ontario, which includes lawyers and certain paralegals.

*The lawyer must still address issues of testamentary capacity and undue influence.

*Electronic signatures are not valid, the order still requires “pen to paper”.

*The Will-maker and witnesses must all be using audio-video technology at the same time; being able to hear and see one another when the Will and/or Power of Attorney is signed.

*Proper identification and other legal requirements must still be complied with.

While this all sounds super easy and can be rolled into practice pretty much immediately, there are a few things to consider:

Pre-Social Distancing world: When we met with our lawyer to sign our Will, that was done in the same meeting room with a second witness present as well. They both watched the Will-maker sign the document and then watched each other initial and sign the document. Besides the paper shuffle, this is was complicated as it got.

In this new virtual witnessing method, once the Will-maker signs the Will during the video conference call, it is our interpretation that documents must then be sent to the non-lawyer witness first. A second video conference call would occur where the client and lawyer watch the first witness initial and sign the same documents. The first witness will then send the documents to the lawyer to witness, and a third video conference call would occur where the client and first witness watch the lawyer initial and sign the documents. It is also our interpretation that this all must occur on the same day.
The lawyer then must prepare Affidavits of Execution for each witness, it is likely that the current affidavit template must be amended to reflect the use of audio-video technology.

During times of social distancing an Order such as this was desperately needed for those who need a Will urgently. While there are a few extra steps in distributing the documents from person to person, this can be done without endangering anyone’s health. The landscape of the legal world is certainly shifting, I will be interested to see what procedures will stick around after we reach the other side of this pandemic.

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