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Virtual Witnessing of Wills and POAs During
COVID-19
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Leve,
Jennifer Cadili, Sahar

April
2020

Industry Alerts

On April 7, 2020, the Ontario government made an order under the
Emergency Management and Civil Protection Act which temporarily amends
the provincial legislation governing the execution of wills and powers of
attorney. The emergency order permits the virtual witnessing of wills and powers
of attorney over audio-visual communication technology for the duration of the
state of emergency.

Why do you need to think about your will and power of attorney
now?

The severity and uncertainty of circumstances surrounding the COVID-19
pandemic highlight the necessity of proper estate planning. Testators should
take the time to ensure that their estate planning documents are up to
date.  This includes a careful review of the will, including the named
estate trustee(s), whether sufficient alternate estate trustee(s) are named, and
any specific gifts made under the will. It is also important to ensure that
powers of attorney for property and personal care are in place for individuals
who fall into high-risk categories given the unpredictability and rapid
escalation of the disease.  A list of assets and debts or any matters
requiring financial management would also be very helpful to any estate trustee
or power of attorney for property.

What does the emergency order change?

Until now, wills and powers of attorney were only legally valid if they
were signed in the physical presence of two witnesses who both sign the
documents as witnesses in the presence of the testator. Ontario courts have no
authority to validate a will or power of attorney that fails to comply with
legislative formalities, which poses a problem when mandatory physical
distancing makes the onerous formalities inadvisable and/or impossible during
the COVID-19 pandemic.

Pursuant to the emergency order, witnessing requirements may be
satisfied by "audio-visual communication technology," with the additional
requirement that at least one of the witnesses is a "licensee" under the Law
Society Act (i.e. a lawyer or paralegal) at the time of signing.

What risks may result during virtual
signing?

There are potential risks that arise when the requirement for in-person
witnessing is relaxed. Of course, contact by video is less reliable than
in-person contact. Lawyers and paralegals need to remain vigilant given the
higher chance that the testator has capacity issues, is subject to improper or
undue influence, or that an incorrect version of the will or power of attorney
is signed inadvertently. In addition, there may be privacy issues that come into
play with meetings that take place on public video-conferencing platforms.
Moreover, the fact that the testator acknowledges his or her signature while the
will or power of attorney is in the hands of a witness could increase the
potential for fraud and forgery.

What restrictions remain intact?

The efforts to support testators who are self-isolating fall short of
what some consider adequate; several arduous obstacles remain. The emergency
order does not permit wills and powers of attorney to be signed by electronic
means (such as DocuSign). In addition, wills and powers of attorney cannot be
signed in counterparts or by separate signature pages since there is only one
valid original document. This may cause significant delay as the documents must
be couriered from the testator to each witness, and multiple video conferences
will ensue. Other legislative formalities, such as the general requirement that
neither witness can be a beneficiary or the spouse of a beneficiary, continue to
be required.

What will this process look like?

A lawyer or paralegal will prepare the will or power of attorney under
the normal course, but shall amend the "attestation clause" of each such
document reference the circumstances (i.e. the video witnessing). The lawyer or
paralegal should review the completed documents with the client and ensure that
the testator understands and appreciates the contents of the documents, that the
documents reflect their wishes, is under no undue influence and that no
suspicious circumstances surround the completion of these documents.

The lawyer or paralegal may act as a witness for the execution of the
documents and will ensure that a second witness is able to join the video
conference in real time.

After the testator has signed the documents during a real time
audio-visual conference with both witnesses, the signed documents could be
couriered by the testator to one of the witnesses who would sign the documents
in the virtual presence of the testator and the other witness, followed by the
same process for the second witness to sign the documents.

Although there is no conclusive answer as to how the document should be
dated given the novel situation in which the document may be signed by the
testator and witnesses on different days, the Ontario legal community is of the
view that the "date" of the documents is the date of execution, or in other
words, the date that the last of the three parties signs them.

The witnesses should also each sign an Affidavit of Execution that has
been drafted to describe the unique circumstances of the video will witnessing.
The witness may sign such an affidavit in front of a commissioner of oaths
virtually, although the lawyer or paralegal who acted as a witness should not be
the commissioner of either affidavit.

How we can help

We remain committed to paying attention to the changing circumstances
and assisting you with your planning needs.  Contact a Dickinson Wright LLP
team member to discuss your current financial situation and see what is the best
option for you.

Please Note: These materials do not
constitute legal or medical advice. Government initiatives, announcements, and
regulations in response to the COVID-19 situation continue to evolve and change
frequently.

Related Services

COVID-19
Developments

Estate
Planning & Administration

Contacts

Sahar
Cadili

Partner
Toronto

T:416-646-6875

E:[email-masked]

Jennifer
Leve

Partner
Toronto

T:416-777-4043

E:[email-masked]

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