COVID 19 – VIRTUAL EXECUTION OF WILLS AND POWERS OF ATTORNEY

Given the state of emergency and the general stay-at-home orders in place in Ontario, many of our clients have been taking some extra time to ensure that their personal affairs are in order, including updating or drafting their Will or Power of Attorney. However, given the current guidelines on social distancing, some have been left wondering how they can actually sign or update their Will without having two (2) witnesses physically present (as required, per the Succession Law Reform Act).

Thankfully, the government of Ontario has issued an emergency order dated April 22, 2020, under the Emergency Management and Civil Protection Act that amended this requirement to allow the temporary virtual execution of wills and powers of attorney by means of “audio visual communication technology”, as well as allowing each individual to witness the document in counterpart. This means that any document that is witnessed virtually (properly) will become valid immediately upon execution— instead of having to wait for all three parties to execute the same original document, the emergency order eliminates the need for lawyers or clients to courier and circulate one document around for three separate signing ceremonies. The term “audio visual communication technology” is defined as any electronic means of communication in which all participants can see, hear and communicate in real-time, and includes Zoom, Duo, Facetime, Skype, or other video-conferencing services.

While the measures enacted are temporary in nature, it is highly likely that this pandemic will have long-lasting effects on the feasibility and practicality of in-person meetings. As such, it is important for clients to familiarize themselves with some of the best practices to follow when conducting these virtual executions, as even a simple mistake can render a Will or Power of Attorney invalid:

  • One of the two (2) witnesses of your Will or Power of Attorney must be a registered licensee of the Law Society of Ontario (either a Lawyer or Paralegal).
  • Each party must be prepared to show identification by holding it up to the camera for the others to see at the beginning of the video-conference.
  • The testator and both of the witnesses must all join the video-conference at the same time and confirm they can see and hear each other throughout the meeting.
  • Verbal consent to record the process must be given by all parties during the video-conference: It is good practice to save a recorded copy of the video-conference, as well as record the date and time of the video-conference.
  • Your lawyer will advise you to clear the room of any non-parties to the document prior to signing to avoid issues related to consent or undue influence: having another person present during execution (especially a beneficiary) may lead to the document being challenged on issues of undue influence. Your lawyer may ask you to do a 360 degree sweep of the room with your camera—if there is a person present, be prepared to establish who they are and why they are there.
  • Once identities are confirmed, the person making the Will or Power of Attorney must complete the following steps to execute the document:
    • Each page is to be shown to each witness via web-cam for confirmation, then must be initialed on the bottom-right corner of each page and shown to the witnesses again for confirmation. Repeat this process for each page.
    • Date is to be inserted by hand, if necessary, with initials placed next to the date if handwritten.
    • Ensure you hold up the signature page for the witnesses to see it and have each witness confirm that they have seen it.
    • Each witness must follow this same procedure if signing in counterpart.
  • For Powers of Attorney, the witnesses must both be:
    • At least 18 years old
    • Not the Attorney or the spouse or partner of the Attorney
    • Not PoA-maker’s spouse or partner or child; and
    • Not under Guardianship.

Note: Failure to follow these steps may render your Will or Power of Attorney invalid.

The provincial state of emergency and the worldwide COVID-19 pandemic is forcing our legal system to change and adapt to the needs of the public. At Kutner Law LLP, we are monitoring these changes on a daily basis in order to best serve and inform our clients.

We, at Kutner Law LLP wish everyone good health during these trying times. This blog post is for informational purposes only and should not be construed as legal advice.