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An Update on Execution of Wills during COVID-19

3 minute read

In an area of the law that has seen very little legislative change for decades, the Ontario government has been working diligently, along with various stakeholders, to allow for the execution of wills and powers of attorney to continue safely in the time of COVID-19.

Prior to the onset of COVID-19, Ontario law required strict compliance with legislative requirements relating to the execution of wills and powers of attorney, including that both the person signing the document and the witnesses must be in each other’s physical presence when signing and/or witnessing the wills and powers of attorney. On April 7, 2020 an Emergency Order provided that this requirement to be “in each other’s presence”  is satisfied by means of audio-visual communication technology, provided that at least one person acting as witness is a licensee of the Law Society of Ontario.

With this option available to us, we have been working with our clients to arrange for documents to be sent to their homes. We then set up a videoconference where we witness clients signing their wills and powers of attorney.  The next step is for our clients to return the signed documents to our offices, and thereafter we arrange a second videoconference where we sign as witnesses.

While this was a most welcome option, it involved several videoconferences, and the transfer of paper back and forth between the clients and us. On April 22, 2020 the Ontario government made a welcome update to the order to allow for both wills and powers of attorney to be signed in counterpart for the duration of the declared COVID emergency. A copy of the order is available online. It will remain in place until May 19, 2020, unless it is otherwise extended.

The new order slightly adjusts our virtual signing process.  While we still send hard copy documents to our clients, we now only require one videoconference for signing. In this videoconference, the clients sign their copy, and we as witnesses have an identical copy at our location, which we each sign. Together, the two signed copies constitute the formal will, or the power of attorney, as the case may be. For that reason, we ask that clients return their signed copies as soon as they are able so that we may hold the documents for safekeeping.  While the two witnesses do not need to be at the same physical location, doing so reduces the number of copies that form the will or power of attorney.

Over the last few weeks, we have been impressed with the number of resources available as we work through the practical steps of following the revised legislation. We are grateful that we can continue our work, and despite the circumstances, the new work environment has sparked an intellectual exercise around how to modify our existing practices to fit the current state of the world. We have also become quite familiar with a range of video-conferencing technology, and we are grateful to our clients for working with us as we all learn this new way of dealing with their estate planning.

While there really is no replacement for the ability to connect in person, we are finding that video conferencing can be an effective means of communicating as we work through this “normal for right now” scenario. We remain grateful for the work of various stakeholders who have been advancing the emergency legislation, and to our colleagues and our clients for working through this new process with us.

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