Making a Will during COVID-19

Topic: Estates and Succession May 12, 2020 by Laura Kerr & Josef Gallant

Ontario legislation requires that Wills and Powers of Attorney be executed in the physical presence of two witnesses. The need for physical distancing brought on by the COVID-19 pandemic is creating obvious difficulties in conforming with these requirements. In response to these difficulties, the Ontario government has issued an emergency Order in Council announcing that for the duration of the state of emergency, witness requirements for Wills and Powers of Attorney can be satisfied through the means of audio-visual communication technology, provided that one of the people acting as a witness is a lawyer or paralegal licensed to practice law in Ontario. “Audio visual communication technology” is defined under the Order as “any electronic method of communication in which participants are able to see, hear and communicate with each other in real time.” Platforms such as Zoom, Microsoft Teams, and Skype would all satisfy this requirement.

The initial Order made on April 6 did not provide any details about how Wills and Powers of Attorney could be signed by three people in different locations.  However, a further Order made on April 22 confirmed that Wills and Powers of Attorney may be executed in counterpart where (and only where) audio-visual technology is being used.  A “counterpart” is a complete, identical copy of the Will or Power of Attorney, signed by one or more, but not all, of the necessary signing parties (either the testator/grantor, or a witness).  As a result of the newest Order, even where the meeting takes place among parties in different locations and executing separate copies of the documents, the copies taken together will satisfy the witness requirements for both Wills and Powers of Attorney. The Order also provides that minor formatting differences in the counterparts will not be fatal to the validity of the documents.

With the health dangers posed by COVID-19, it is not surprising that there has been an uptick in the number of clients who are rushing to have their Wills and Powers of Attorney drafted or amended. It is important that in spite of the emergency situation, people are still able to set down their testamentary wishes so they can be confident they will be honoured.  These changes to the witness requirements help enable lawyers provide these services to clients.

During the pandemic, LMR has been endeavouring to provide Wills and estate services to our clients while paying close attention to any developments or changes governments are making with respect to the law and formalities. As a result of the current Order, we are now offering videoconference meetings to execute testamentary documents.  We will arrange for you, one of our estate lawyers, and one of our assistants to “meet” by videoconference, each with a copy of the Will and/or Powers of Attorney.  You will initial or sign each page in our virtual “presence”, as directed by us, and then hold that page up to the camera so that both witnesses can see it.  Each witness will then initial or sign the same page of their copies of the documents and hold the document up to the camera so that you can see it.  Once all pages have been properly executed, we will arrange for a courier to pick the documents up from you, so that all copies can be assembled together into one final and valid document.

In some respects, we are in unchartered territory with the unique circumstances of the pandemic and the availability of quality audio-visual technology. We have other signing options available for clients without access to a smartphone, or a computer with a webcam and microphone.  We encourage our clients not to wait to make changes to their Wills or Powers of Attorney, but to take advantage of the permitted use of audio-visual technology or to contact us to arrange for an alternative method of signing your documents while still respecting the physical distancing requirements.  We will work with you any way we can so that you are confident that your testamentary wishes are accurate and secure.

Keep checking back with LMR for updates on how the COVID-19 pandemic is affecting wills and estate law as well as other legal areas that are important to you. Meanwhile, remember to wash your hands, practice physical distancing, and stay safe!