The situation regarding COVID-19 is changing rapidly, this post is current as of April 14, 2020.
As we continue to live through tenuous times and social distancing, completing estate planning can be a challenge. In Ontario, the Succession Law Reform Act (SLRA) mandates that a Will be signed by the will-maker (also known as the testator or testatrix) in the presence of two witnesses, neither of whom should be a beneficiary or the spouse of a beneficiary under the Will. The Substitute Decisions Act (SDA) also includes a number of restrictions on who can act as a witness to the signing of Powers of Attorney for Property and Personal Care. Close family members of the person signing the power of attorney (also called the grantor), including the individual’s spouse, children, and their spouses, cannot be witnesses.
It is not uncommon for the drafting lawyer of a Will or Power of Attorney and their assistant or other office staff to act as witnesses. However, in this new era of social distancing, it may not be possible. Accordingly, for people living alone as well as those living with family members, it can prove difficult to find two suitable witnesses.
Thankfully, on April 7, 2020, an emergency order, announced by the Ministry of the Attorney General’s office, was made under the Emergency Management and Civil Protection Act, regarding the virtual execution of Wills and Powers of Attorney. The order now makes it possible for Wills and Powers of Attorney to be signed remotely, with the use of an electronic method of communication whereby participants can see, hear, and communicate with each other in real time. A requirement is that one of the witnesses must be a licensee (lawyer or paralegal) of the Law Society of Ontario.
This is a ground-breaking development for Wills and Estates lawyers in Ontario. Prior to the pandemic, in compliance with the SLRA and SDA, Wills and Powers of Attorney would be signed by having the testator/testatrix/grantor in the same room at the same time as the two witnesses, who would observe the signing of the documents and also sign as witnesses. Due to the current pandemic, temporary emergency measures have been implemented to allow for Wills and Powers of Attorney to be signed and witnessed remotely, via audio visual communication technology, with all three individuals potentially in different locations.
Despite the uncertainty that comes with living through a pandemic, it is still an opportune time to complete and ensure your estate planning is up to date. As the saying goes- where there’s a will……there’s a way.
To obtain additional information about this new development or receive assistance with updating or preparing Wills, Powers of Attorney or other estate planning documents, please contact the Estate Planning and Administration Group at Dale & Lessmann LLP.