Hayden Trbizan looks at how COVID is causing new rules to virtually execute new wills and powers of attorney.

The creation of Wills or Powers of Attorney is undoubtedly one of the most personal and intimate endeavors one will undertake in their lifetime. In ensuring a Will or Powers of Attorney is legally valid, the process by which it is executed is critical. Importantly, the area of Wills and Estates has not been immune to the swath of legislation implemented by the Ontario government to help us safely navigate the COVID-19 pandemic.

With new legislation has come temporary changes to how a Will and Powers of Attorney are to be executed during the declared state of emergency. This blog will briefly touch on those changes and outline what can be expected should you need to execute a Will or Powers of Attorney during the pandemic.

COVID Causes Temporary Changes

Previously, the required formalities for a legally valid Will or Powers of Attorney included the signature of two witnesses who would both be physically present with the testator or grantor at the time of signing. Problematically, with COVID-19 mandatory social distancing measures, this has been rendered impractical.

On April 7, 2020, a solution was provided through an Order under the Emergency Management and Civil Protection Act, whereby the statutory requirements were varied to allow for the virtual witnessing of Wills and Powers of Attorney via audio-visual communication technology. However, one additional requirement was that at least one of the witnesses be a “licensee” under the Law Society Act. Pursuant to the Law Society Act, a “licensee” is defined as a person licensed to practice law in Ontario as a barrister or solicitor, or a person licensed to provide legal services (i.e. a paralegal).

In terms of previously dealing with one original copy of a Will or Powers of Attorney, an amendment made to the Order on April 22, 2020, now permits parties to sign separate and identical copies. As such, there is no need to worry about the risks of exchanging one single copy of the Will or Powers of Attorney.

What to Expect

The process will remain largely the same. In the preparation of a Will or Powers of Attorney, an “attestation clause” will be incorporated to reflect the circumstances of the virtual witnessing. Separate and identical copies of the documents are then provided to the testator or grantor and the witnesses in preparation for the virtual witnessing.

As mentioned above, one of the witnesses must now be a “licensee” under the Law Society Act. It is important to remember that restrictions under the Succession Law Reform Act and the Substitute Decisions Act still apply to who can be selected as the other witness for a Will or Powers of Attorney. For instance, a witness to a Will cannot be a beneficiary or the spouse of a beneficiary.

The virtual witnessing itself will be conducted on audio-visual communication technology, such as Zoom, that enables all parties to see and communicate with each other in real time. From there, a lawyer will help guide the parties through the process, confirming the integrity of the documents, and making sure the testator or grantor appreciates and understands the contents of the documents.

Potential Alternative

Not everyone may have access to the technology required to participate in a virtual witnessing by means of audio-visual communication. One alternative that has been utilized lately is “porch signings,” where the witnesses will observe the testator or grantor sign the documents from the front door or window of their home. So long as proper precautions (i.e. masks and social distancing) are maintained, this could be a safe and viable option as well.

A copy of the Order can be found here.

Hayden Trbizan is a graduate of the dual Doctor of Law program at the University of Windsor and the University of Detroit Mercy School of Law. Connect with Hayden on LinkedIn.