Note: This blog post has been updated to reflect the amended Order by the Lieutenant Governor in Council on April 22, 2020.
On April 7, 2020, the Lieutenant Governor in Council made an Order under the Emergency Management and Civil Protection Act varying the current statutory requirements for the execution of a Last Will and Testament ("Will") and Powers of Attorney.
The Order allowed for the virtual witnessing of Wills and Powers of Attorney, which permitted lawyers to attend with their clients by video conference to view them signing their Wills and Powers of Attorney, rather than requiring the lawyer and witnesses to be physically in the same room as the client.
On April 22, 2020, the Lieutenant Governor in Council amended the Order under the Emergency Management and Civil Protection Act to permit Wills and Powers of Attorney that are witnessed virtually to be signed in counterpart. What this means is that complete and identical copies of documents can be signed separately by the testator/grantor and the witnesses at the same time. This change, therefore, allows for one meeting to take place, instead of additional meetings to have the same document executed by the testator/ grantor and the witnesses. The amended Order, which can be accessed here, is in effect as of April 22, 2020, and during the declared state of emergency.
Prior practice in the execution of Wills and Powers of Attorney documents
The Succession Law Reform Act requires that a non-handwritten Will be signed in the presence of two witnesses, present at the same time, who also sign the Will in the presence of the testator and each other.
The Substitute Decisions Act similarly directs that a Continuing Power of Attorney for Property (section 10) and a Power of Attorney for Personal Care (section 48) shall be executed in the presence of two witnesses, each of whom shall sign the document as a witness.
Until the COVID-19 crisis, the standard practice was for the testator/grantor to be in the same room as the witnesses when executing a Will and/or Powers of Attorney. Estate planning lawyers typically would have the client attend at their office to sign their documents or would attend at the client's home. The introduction of social distancing measures to combat the spread of COVID-19, therefore, made it difficult for lawyers to witness their client's documents in a safe manner that also complied with the governing legislation.
The new Order now allows for lawyers to witness Wills and Powers of Attorney through video-conferencing technology and to sign in counterparts.
For Wills, the requirement under the Succession Law Reform Act that a testator or witness be present or in each other's presence for the signing of a Will or the subscribing of a Will may now be implemented through the use of "audio-visual communication technology".
For Powers of Attorney, the requirement under the Substitute Decisions Act that a witness be present for the execution of the document may now also be satisfied though "audio-visual communication technology".
There are two important caveats, however. At least one person who is a witness to the Will or Powers of Attorney has to be a licensee as contemplated by the Law Society Act and the electronic method of communication used must allow for the participants to see, hear, and communicate with each other, in real time.
Considerations for estate planning lawyers
As always, the estate planning lawyer must ensure that the testator/grantor has the requisite capacity to execute the document in question and that the client is not being unduly influenced in their decision-making.
It is suggested that the following be considered by estate planning lawyers when venturing into the virtual sphere and the execution of estate planning documents:
- Review LAWPRO's video conferencing checklist prior to commencing the video conference, which checklist can be found here;
- Remember to confirm the identity of the client by asking them to provide photo identification prior to the video conference;
- Ensure that the document being read through with the grantor/testator, and being signed by the grantor/testator and the witnesses, are the same document (consider having a phone call or video conference for the client to approve the draft prior to signing to avoid the need for any handwritten amendments to the documents at the time of signing);
- Capture the entire room the grantor/testator is in to ensure that there are no other persons in the same room potentially influencing the testator/grantor when going over their instructions, terms of the document, and when they are executing the document. Consider also asking questions pertaining to whether there are others in the household currently and their whereabouts;
- Inquire as to whether there are any notes, directions, or documents, in front of the testator/grantor that are being relied upon, aside from the document being executed (a consideration more so for elderly clients);
- Take note of the body language of the testator/grantor during the video conference and whether there are any indications of anxiety, fear, insecurity, or reliance on others;
- Have a witness that is not in the same household as the testator/grantor to minimize the risk of any allegation of undue influence, if possible. If the technology is available to the lawyer, it may be possible to have the second witness be another member of the law office staff who also attends by video conference;
- Ensure that the video conference is set up so that both witnesses can actually see the testator/grantor sign the documents;
- Arrange to have the executed documents immediately returned by courier to the law office to ensure that documents are not misplaced;
- Ensure that the execution statement and Affidavit of Execution reference the circumstances of signing;
- Note that the Order allowing virtual witnessing does not allow for the use of electronic signatures; the signatures of the testator/grantor and witnesses must still be original "wet" ink signatures; and,
- Prepare detailed notes of the virtual meetings with the testator/grantor, including the steps taken to ensure capacity and lack of undue influence.
This new development will allow for greater flexibility in providing estate planning services to clients during the COVID-19 pandemic. With that being said, estate planning lawyers must be vigilant in ensuring that the documents are formally valid, that testators/grantors have the requisite capacity, and that the client is not subject to any undue influence to minimize the risk of potential estate litigation claims.
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.