Wednesday, April 08, 2020

Virtual Witnessing of Wills and Powers of Attorney Comes to Ontario During Covid-19. What Will Come Next?


Last week, we brought you news about an urgent Court session that would be taking place in Ontario to address the question of whether a Last Will signed using  Zoom (or a similar service)- with the testator and the witnesses in different locations, was valid.

Preempting that Court hearing, the Ontario Government made a new emergency regulation dealing with the issue, under the Emergency Management and Civil Protection Act. The new regulation (full text here) says that for the duration of the State of Emergency declared by the Ontario Government, the requirement for Last Wills and Powers of Attorney to be signed "in the presence of two witnesses" will be satisfied "by means of audio-visual communication technology,, so long as at least one of the witnesses is licensed by the Law Society.

This is an imperfect, but necessary solution in an emergency, but it does raise some questions about the future of "virtual wills":
  • What will constitute a "signature" on the Will or Power of Attorney? Will three people need to sign versions of the document in ink, or will "electronic" signatures be valid?
  • What exactly is "audio-visual communication technology"? Are all platforms created equal?
  • Are Last Wills and Powers of Attorney signed in this manner going to be replaced with conventional documents after the emergency is over?
As we adjust to these new regulations, we should keep these principles and laws in mind:
  • For a Will or Power of Attorney to be valid, the person making it must know and understand its contents, and agree that the contents match her intentions, and must be capable of understanding what could happen to her if she signs this document.
  • A Last Will is not valid if at the time of signing, the testator is under undue influence to sign a Will, to the point that the testator feels she has no choice in the matter.
  • When two spouses are signing a Last Will or a complex Power of Attorney, particularly if they come from a blended family, have complex individual net worth, or have a marriage contract or cohabitation agreement, they may each need independent legal advice for their respective Wills, in order for the documents to be valid.
  • If a Last Will or Power of Attorney in Ontario contains a "drafting error" that seriously alters its meaning or effect, the Court may have limited ability to rectify it after the fact.
  • A Last Will made in Ontario may not cover assets owned in other jurisdictions, and vice versa, additionally, a Last Will made under these emergency conditions in Ontario may not be recognized as valid in another country or province. 
The importance of consulting with a lawyer when preparing a Last Will or Power of Attorney isn't just in having someone whose presence and signature make the document valid, it's in the ability to discuss your needs with a knowledgeable professional, who can give you qualified legal advice about how to plan your Estate and your personal affairs. 

The lawyers at Wise Law Office have been adapting to the Covid-19 pandemic with new technology and procedures to ensure that we are able to advise and assist with your Last Will and Power of Attorney during and after the crisis.

- Paul B. Adam, Toronto

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