On April 7, 2020, the Ontario Government issued the Order in Council under the Emergency Management and Civil Protection Act (the "Emergency Order").
As we discussed in our blog articles (here and here) previously, our legislation normally requires you to sign your Will and Powers of Attorney in the physical presence of two witnesses. The Ontario Government moved quickly to overcome the challenge to arrange two independent witnesses to be physically present while we are all practicing social-distancing. In this article, we will discuss the changes to the rules relating to the execution of your Will and Powers of Attorney, the actual steps involved in virtual execution of your documents and assess this new option of virtually executing your documents.
Virtual Execution – What You Can or Cannot Do
The Emergency Order essentially allows Ontarians to execute their Wills and Powers of Attorney in the virtual presence of witnesses by video conferencing during the COVID-19 state of emergency. However, it is important to note the following:
- The Emergency Order does not apply retroactively. Therefore, any Will or Power of Attorney virtually witnessed before April 7, 2020 is not valid;
- Virtual witnessing is allowed during the duration of the state of emergency;
- One of the two witnesses must be a licensee of the Law Society of Ontario (i.e., a lawyer or certain paralegals) at the time of execution of the documents by all participants;
- The requirement of presence of participants (you as a testator or grantor and two witnesses) under the Succession Law Reform Act ("SLRA") and the Substitute Decisions Act, 1992, can be satisfied by the use of "audio-visual communication technology", which means "any electronic method of communication in which participants are able to see, hear and communicate with each other in real time";
- All participants must sign the same documents and not in counterparts;
- Signatures of the participants must be original (wet) signatures, not digital signatures; and
- The New Order does not allow you to make a digital Will or Powers of Attorney.
Steps to Complete Virtual Execution of Your Estate Planning Documents
In order to duly and virtually execute your Will and Powers of Attorney under the Emergency Order, the following steps will be taken:
- You and two witnesses, Witness A and Witness B (altogether the "Participants") attend a video conference; all the Participants must be able to see, hear and communicate with each other at the same time;
- You sign your documents while your witnesses watch you sign by video, and it is recommended that you initial each page as well;
- You show the signing pages of your documents to your witnesses and your witnesses acknowledge your signatures;
- You send your signed original documents to Witness A;
- Witness A receives your signed documents and arranges a video conference with the Participants;
- The Participants attend a second video conference and Witness A signs the documents while the other participants watch Witness A sign the documents and acknowledge Witness A's signature;
- Witness A shows the signing pages of your documents to other participants and other participants acknowledge Witness A's signatures;
- Witness A sends the original documents to Witness B;
- The Participants have a third video conference and watch Witness B sign the documents and acknowledge Witness B's signature;
- Now you have a validly executed Will and Powers of Attorney.
(*Steps 8 and 9 above can be omitted if Witnesses A and B are able to be present in the same room.)
Practical Challenges to Virtual Execution
Although virtual witnessing is certainly a welcome change in the current situation, we should treat this new method with caution. We identify practical challenges to virtual execution of Wills and Powers of Attorney as below:
- Timing: As you see the steps above, your documents will not become valid until both witnesses sign the documents by video. Since the Participants will relay the documents from one to another and arrange a video conference each time when signing the documents, it will likely take time to complete the whole process. Further, the current delay in mailing or courier services could add another hurdle. If you need to have your documents in place as soon as possible, virtual witnessing is not ideal.
- Risk of losing original documents: Since your documents will be sent out from one to another, there is a concern about losing the original documents in transit.
- Integrity of the documents: As your documents could stop by as many as three places, it is important to keep the entirety and integrity of the documents. Including page numbers and a header or footer of the description of the documents, and initialing every single page of the documents will help to keep the integrity of your documents.
- Access to technology and digital literacy: Virtual witnessing requires you to have a device and internet to make video conferencing possible. Not everyone has such technology. Even if you have a device with a video conference function, you may require someone's assistance to set up the video conferencing environment. Having someone to assist to set up a video conference may make it impossible to keep your privacy for execution of your documents.
- The client's capacity and undue influence: If we resort to virtual witnessing, we as lawyers will likely use a video conference to take our clients' instructions to prepare their Will and Powers of Attorney, in the first place. Confirming the client's capacity can be challenging by video conferencing. Further, it may not be easy to sense any undue influence by someone else by using a video.
Are there any other options?
During the COVID-19 pandemic, the conventional way of signing your documents in the physical presence of two witnesses would be still the ideal option if you are able to arrange two independent witnesses, given the time and efforts involved in completing virtual execution. We should not forget that the physical signing of your documents can be done at the porch or back yard of your house while keeping the physical distance among the participants. Above all, you will be able to have your documents in place immediately upon signing.
We need to assess every client's needs and circumstances, such as health, timing, and access to technology etc., and determine what signing option would work the best for each client. We are closely watching the development of the best practice for virtual execution of Wills and Powers of Attorney among estate planners in Ontario and will update you accordingly.
Originally Published 20 April, 2020
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.