Getting your Will done during a pandemic...
Updated: May 11, 2020
Estate planning is important 365 days of the year, but recently the COVID-19 pandemic has definitive increased everyone's sense of urgency to get their affairs in order. While most of the estate planning work can be done remotely using modern technology, such as taking instructions through video calls or by telephone and following up through email, the one major hurdle facing clients has been how to properly (and legally) sign the will (often called "will execution").
Under Ontario's Succession Law Reform Act, a formal typed will requires the testator and two witnesses to be physically present to execute the will. Traditionally this meant 3 people in the same room passing the will around after the testator signs it, followed by each witness (and best practices would have everyone initial each page). For obvious reasons, social distancing recommendations that are in place province-wide makes formal execution of wills challenging. Some clients don protective gear such as gloves and masks, and another good tip is for everyone to bring their own pens. But many clients are still concerned about meeting in person, and on April 7, 2020, the Ontario Government passed an Order under the Emergency Management and Civil Protection Act, (Regulation 129/20) that permits the execution of wills and powers of attorney with the use of audio-visual technology. This is a temporary measure that is expected to last only for the duration of the emergency. The government likely received some "constructive criticism" on the challenging logistics of this Order, and a few weeks later, on April 22, 2020, the Order was amended to allow for wills and powers of attorney to be signed in "counterparts" (explained below).
Executing Wills through Video Conferences
The Regulation permits the 3 individuals (the testator and two witnesses) to be in different locations, so long as all three can witness the singing of the will through audio-visual technology. The major change from traditional will execution, however, is that one of the witnesses must be a lawyer. (note: While the Regulation says a "licensee" of the Law Society, which includes lawyers and paralegals, the Law Society of Ontario does not permit paralegals to prepare and provide legal advice about wills or powers of attorney; as such be cautious of any paralegals attempting to offer such services).
Prior to the amended to the Order, everyone had to meet virtually (through audio-visual technology such as Skype, Zoom, FaceTime, Facebook video chat, etc), three times. This is because the Order did not change the requirement under the Succession Law Reform Act, to have all the signature on the same single copy of the Will. In other words, wet pen-ink needs to applied be all 3 individuals on the same (and only copy) of the Will, commonly known as "wet signatures".
So after the testator signs the will first through a video conference, the originals need to be sent to the non-lawyer witness. Every re-joins the video conference (which may be a different given the realities of the complex logistics of this process), and the witness will hold up each page, confirming it is the exact original that was signed (or initialled) by the testator and then apply his or her initials and signature. Then it has to be sent to the lawyer, and the process needs to be repeated for a third and final time.
Most lawyers that have commented on this change have recommended recording the video sessions. While this is not a requirement under the new Order, it is undoubtedly best practice.
The same process would be used to execute the powers of attorney for property and personal care.
Signing Wills in counterparts: As you can tell, the logistics of executing wills and powers of attorneys outlined above is both time consuming and risks loosing or damaging the only original set of documents as it travels between testator and witness. Thus. on April 22, 2020, the Government amended the Order to permit wills and powers of attorneys to be signed in counterparts.
The term "counterparts" refers to identical sets of documents being signed usually in different locations by the parties to the document, and understanding among the parties that the combined set of signed documents forms a single complete document. In the context of wills and powers of attorneys, the testator and two witnesses (one of which still must be a lawyer) each need to have a printed copy of the same document. Each page should be shown to everyone on the video conference and initialed/signed and dated. Then all three sets of originals should be combined (presumably with the drafting lawyer) for safe keeping.
Affidavit(s) of Execution
Another step that is crucial to the formal execution of wills, is having a witness execute an Affidavit of Execution. Regrettably, the Government did not take the opportunity when making its Order to provide a new prescribed form that the Affidavit of Execution should take if the will is executed via audio-visual technology. Prior to COVID-19, the Court required people to use Form 74.08 (Affidavit of Execution of Will or Codicil), a prescribed form under the Rules of Civil Procedure, when filing an application for a certificate of appointment of estate trustee with a will (commonly known as "probate"). It is unclear, at this time, how the Court will deal with an Affidavit of Execution that is not in the prescribed form. Until such time that the Court has had to deal with that scenario, best practice would be to have both witnesses execute an affidavit, though even that does not appear to be a strict requirement.
If the will is executed as a single a document (i.e., where the original is sent to the first witnesses and everyone does another video conference, and then sent to the third witness and everyone does a final video conference), the standard affidavit could be easily modified to indicate which dates each video conference took place. If the will is executed in counterparts, then each counterpart should have an exhibit stamp (e.g., "Exhibit A" is the copy the testator signed and "Exhibit B" is the copy the witness signed who is also swearing the affidavit). In an abundance of precaution, if the counterparts method is used, then both witnesses ought to swear affidavits of execution.
Emergency Holograph Wills
Another approach being taken by lawyers, is to assist their clients prepare a simplified version of their will which can be easily written by the testator in his or her own handwriting. Holograph wills are perfectly valid in Ontario (though the court application to prove the will requires an affidavit attesting to the handwriting of a holograph will, which can be challenging to obtain in some cases). While a formal will tends to include more substantive powers and additional clauses that can assist the Estate Trustee administer the estate, if there is no time to formally execute the will either in person (due to health risks) or through a video-conference, then a short, clearly drafted holograph will could do the trick. In such cases, I would still recommend the client return after the pandemic to execute formal will if at all possible.
Unfortunately, there is no such thing as "holograph" power of attorney. The Substitute Decisions Act requires 2 witnesses. Thus, the only options would be to meet in person (taking the necessary precautions outlined above) or to do so though the use of audio-visual technology.
Since most of us are working from home, this really is a good time to start planning you affairs. If you are interested in assistance in this matter, please feel free to contact my office.