COVID-19 has introduced a new landscape to our lives. We have been forced conduct most of our work remotely. Complex estate planning is now completed beginning to end without ever having to meet in person.
Remote signings for Real Estate transactions are possible and a good solution in times of social distancing. This was made possible by the Law Society of Ontario’s statement that while Commissioning affidavits and statutory declarations generally does require a physical presence, video conferencing is permitted and will be interpreted as in the “physical presence”.
However, signing Wills in Ontario have stricter rules.
The law that applies to Wills and Powers of Attorney is the Succession Law Reform Act, which provides that Wills must be in writing and must be signed by the testator in the presence of two or more witnesses who are also present at the same time; “in the presence of the testator” (section 4) means that the witnesses must actually see the testator sign and the testator must see each of them sign while both are in their presence at the same time. While there can be some leeway with Powers of Attorney, also known as “substantial compliance”, Wills on the other hand require “strict compliance”. In short, the law of Wills in Ontario does not explicitly allow electronic signings;
With the COVID-19 physical distancing requirements in place, having a lawyer physically present is not practical. A creative solution was to provide detailed instructions to clients on how to execute their Wills. Despite the instructions provided, without a lawyer present, execution could have its problems.
Thankfully, an Order was made under the Emergency Management and Civil Protection Act, to temporarily permit virtual execution of Wills and Powers of Attorney through audio-visual communication technology during the COVID-19 emergency. This permission was and is renewed each month and is currently set to expire late November, however suspicions are that it will be extended yet again.
Signing Wills by videoconference is only permitted so long as at least one person who is providing services as a witness at the time of the making, acknowledgment or subscribing the Will is a licensee of the Law Society of Ontario (e.g. a lawyer).
In the Emergency Order, “audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with each other in real time.” There are many such technologies available that we are making good use of.
The Attorney General amended the Emergency Order by allowing signatures on complete, identical copies of the Wills and Powers of Attorney, in counterpart. Together, the signed documents constitute the valid Will and Power of Attorney.
Wet signatures and having a lawyer present are still requirements, so those online do it yourself kits become doubly problematic.
These welcomed Emergency Orders allow us to continue to provide essential estate planning services during this difficult time. As estates law continues to evolve, our hope is that these temporary changes get improved upon and become permanent. Remote and virtual legal services are likely here to stay.
Contact us to guide you on your estate planning journey.
The general information on this page is not applicable to any specific case and is intended for information purposes only. It is not a substitute for legal advice and may not be relied on as such. Readers are expressly advised to consult with a qualified lawyer for advice regarding their specific circumstances and entitlements under Ontario law.
