COVID-19 has caused many of us to think about our own mortality and to make sure our affairs are in order with a will.
In Ontario, the Succession Law Reform Act sets out clear rules for how a will has to be executed in order for it to be valid. The person making the will (the testator) must sign the will “in the presence of” two witnesses. Both of these witnesses must also sign the will in the presence of the testator and each other. At Lerners, these requirements are usually satisfied by a meeting at our offices. The testator signs the will in the presence of their lawyer and another Lerners staff member. The lawyer and the staff member then sign the will as witnesses.
Because of the social distancing we are all respecting these days, we are not able to meet with clients in person to sign wills in this traditional way. The Ontario government recently addressed this issue by passing an emergency order on April 7. The emergency order states that, during the health emergency, wills can be signed and witnessed by videoconference.
The will still has to be signed by the testator and 2 witnesses. One of the witnesses must be a lawyer. First, the testator will sign the will by videoconference with both witnesses. Witnesses can be in separate places. Once the testator has signed the will, they will have to return the signed documents to their lawyer. A second videoconference must then be set up for the witnesses to sign the will as well. If both witnesses are not at the same location, a third videoconference may be necessary.
To be safe, we recommend that clients come in to re-sign their wills at our office once the health crisis is over.
Not all clients have the technology to support videoconferencing and it may be difficult to arrange to courier or drop off the documents. For these reasons, Lerners is committed to working with clients on a case-by-case basis to determine the best option for signing.