The COVID-19 pandemic has forced industries across the world to adapt to the new reality of very limited in-person contact between people who do not reside together. Since March 2020, lawyers, for example, have been meeting with clients largely by video or teleconference instead of in person. This has been manageable in most cases but presented an issue for meetings requiring the signature of official legal documents, such as Wills. Prior to the pandemic, it has always been a requirement that a legal Will is in writing and signed personally by both the testator and the witnesses, in each other’s presence. This requirement was put in place to discourage issues such as fraud or other causes for potential litigation down the road.
Province Issued Emergency Order in Council in April to Address Estate Planning During the Pandemic
However, the pandemic created an unprecedented situation and the legal community was required to react quickly. On April 7th, the Ontario government issued an emergency Order in Council (OIC) to enable Ontarians to ensure they had a comprehensive estate plan in place without necessitating in-person contact with lawyers and witnesses. The OIC stated that all Wills and Powers of Attorney could be signed and witnessed electronically, so long as at least one witness was a licenced member of the Law Society of Ontario.
In August, Ontario Attorney General Doug Downey confirmed that the province was in consultations with the public and legal professionals on whether the temporary measures should be adjusted or made permanent, saying:
The feedback on that has been tremendous for people who are either remote or are unable to get to a lawyer’s office. And part of what we are doing is moving things beyond the need to go to a courthouse or a law firm. We are trying to bring the tools and the system of justice to people where they are, instead of the way it’s traditionally been done.
If made permanent, these measures would allow those who live in remote areas or are unable to travel even short distances, to more easily ensure they have an adequate estate plan in place. Oftentimes those who find it most difficult to execute estate documents in person are some of the most vulnerable people, whether due to age or health status. This would enable them to work with their lawyer remotely and ensure their needs are met without risking their physical safety, due to COVID or other challenges.
Ontario Extends Emergency Measures into January 2021
On December 10th, the Province issued Ontario Regulation 458/20: Extention of Orders, which will extend the period allowing for the virtual signing of Wills and Powers of Attorney to at least January 20, 2021. Under this Order, testators and witnesses will not be required to be in one another’s physical presence when executing these documents. Instead, the ‘in-person’ requirement may be satisfied via the use of audio-visual technology, such as video conferencing equipment, so long as the participants can see and hear one another in real-time.
Of course, with these measures in place, and with some pushing for the province to allow electronic signatures on documents, the protection of those executing estate plans must remain paramount. While these new measures are certainly needed during the global health crisis and will continue to be useful to many should they continue beyond the pandemic, it’s also important to ensure that they don’t put Ontarians at heightened risk for undue influence or fraud. Requiring at least one witness to be a licensee of the Law Society of Ontario is a good start, to help ensure that those with ulterior motives do not take advantage of anyone in a vulnerable state. Any permanent policy changes will need to take these considerations into account and include measures intended to address these concerns.
The estate lawyers at Campbells LLP are fully equipped with the technology necessary to assist clients with the drafting and execution of Wills and Powers of Attorney during these uncertain times. We have written previously about the precautions we have taken to use video conferencing technology that is both secure and easily accessed by our clients. To discuss or amend your current estate plan with one of our skilled lawyers, please contact us online or by phone at (905) 828-2247.