The Alberta Government has authorized the remote execution of estate planning documents on an indefinite basis.
To provide context, on May 15, 2020 the Minister of Justice of Alberta issued Ministerial Order 39/2020 (the "Order") in response to the COVID-19 pandemic. The Order permitted the remote witnessing of Wills, Enduring Powers of Attorney and Personal Directives, all of which previously had to be signed by an individual and their witness together in-person.
However, the Order did not specifically authorize the signing of Wills in counterpart, which was a critical impairment to the ability to remotely witness a Will. In response, the Government of Alberta introduced the COVID-19 Pandemic Response Amendment Act, 2020 ("Bill 24"), on June 18, 2020 which amended several pieces of legislation including:
- Personal Directives Act RSA 2000 c P-6
- Powers of Attorney Act RSA 2000 c P -20
- Wills and Succession Act, SA 2010, c W-12.2
The foregoing legislation outlines specific requirements when signing these forms of estate planning documents. Section 15 of the Wills and Succession Act requires that two witnesses be present at the same time while the testator makes or acknowledges their signature in the formal Will. Section 2 of the Powers of Attorney Act requires the Power of Attorney to be signed in the presence of the donor and witness. Section 5 of the Personal Directives Act requires a Personal Directive to be signed in the presence of the maker and witness.
Bill 24 amended these aforementioned sections to allow for the individuals involved to be deemed in each other's presence if they are connected via an electronic mode of communication. This requirement is satisfied if the individuals are able to see, hear, and communicate with each other in real time.
Pursuant to Ministerial Order 47/2020, called the Remote Signing and Witnessing (Effective Period) Regulation (the "Regulation"), the period during which persons are deemed to be in each other's presence via electronic means under the Wills and Succession Act, Powers of Attorney Act and Personal Directives Act was set to expire on August 15, 2020, but was been extended several times and was most recently set to expire on August 15, 2025.
The Regulation has now been repealed, meaning the deemed presence provisions in the Wills and Succession Act, Powers of Attorney Act and Personal Directives Act will continue indefinitely.
When considering signing estate planning documents remotely in Alberta1, there are requirements that must be fulfilled. For example:
- Where the signing of a Will, Personal Directive or Power of Attorney is being done via remote signing, each document must be witnessed by a lawyer who is an active member pursuant to the Legal Professions Act, RSA 2000, c L-8. Further, the lawyer must also be providing the testator with legal advice with respect to the making, signing, and witnessing of these documents; and
- Original documents must still be executed using wet-ink signatures - electronic signatures are not permitted.
Footnote
1 Remote signing of estate documents may not be valid in all jurisdictions and this article specifically relates to Alberta. If you are considering creating or signing estate planning documents (whether remotely or in-person), we recommend you contact a practising lawyer for assistance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
