Friday, April 03, 2020

Is the "Zoom Last Will" Coming to Ontario?


The Superior Court in Ontario has agreed to hear an urgent case that addresses what has become a critical issue during the Covid-19 pandemic: can a Last Will be validly witnessed  online, via Zoom, or a similar a video conference platform.

Our office has been considering implementing this procedure, and guidance from the Courts on this will be more than welcome.

The Globe and Mail has reported that the case concerns an elderly couple, that, like much of the province, has been sheltering in place during the novel coronavirus outbreak.

The couple's lawyer says that:
... she and her legal assistant witnessed the pair sign the documents over the online video-conferencing service Zoom, recording and saving a copy of the meeting. As the couple initialed and signed each page of their wills, they held them up to show the camera. Ms. Nagrani filed an application with the Ontario Superior Court of Justice on Tuesday, asking the court to declare that the procedure she used meets the requirements under the law.
The case has attracted attention because up until now, for a Last Will to be valid in Ontario, the Succession Law Reform Act has required that it must be signed "in the presence of two witnesses."

The "presence of two witnesses" has for some time been interpreted by the Court as the physical presence of the witnesses, meaning preparing a Last Will online has not been a valid alternative. Ontario courts have consistently held that they have no authority to deem a Last Will valid if it does not comply 100% with the formal requirements of the Act. 

The Court will be asked to weigh in on whether, in these unusual times, an electronic signature on a Last Will is valid, or whether the "presence" of a witness can include watching the testator by video, perhaps with certain specific requirements to be observed.

The former is already considered a valid form of Last Will in Arizona and Nevada.

However the Court rules, its impact on estate law in Ontario may be felt long after the current crisis has passed.

- Paul B. Adam, Toronto
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