Thanks to the Ontario Government, our will and estate lawyers have a new tool in their tool kit to assist clients with making wills and powers of attorney or changing their wills and POA’s and estate plans during the COVID-19 pandemic.
The pandemic has drastically changed the way we live and do business. With physical distancing measures in effect, we have been required to update and adapt many of our regular business activities and practices to take place in a virtual environment. Unlike us, however, the law is usually not so quick to react.
In Ontario, the Succession Law Reform Act outlines the guidelines on how a will must be executed in order to be valid, and the Substitute Decisions Act outlines similar guidelines for the execution of a power of attorney. These laws are strict. Aside from a legislative change, no exceptions are available.
Normally, for a typed will or a power of attorney to be valid, two key requirements must be met:
- A testator (“will-maker”) or person granting a power of attorney must sign or acknowledge their signature in the presence of two witnesses; and
- Both witnesses must, in turn, sign the will or power of attorney in the presence of the will-maker and each other.
It is also important to note that only certain unrelated parties can act as a witness to a will or a power of attorney; for example, among other’s a spouse, a child or a beneficiary under a will cannot sign as a witness. With many families self-isolating together, these witness restrictions make it even more difficult to execute a will or power of attorney.
While we are all adhering to the governments physical distancing directives, it is difficult, potentially unsafe and in some cases impossible for lawyers to attend in person to witness the execution of a will or power of attorney .
To enable physical distancing to continue and to address the requirement that the witnesses be ‘in the presence of’ the will-maker, the Ontario government has introduced a new regulation under the Emergency Management and Civil Protection Act. Many of you may have seen the announcement on Twitter by Doug Downey the Attorney General yesterday. The regulation now allows, for the duration of the COVID-19 emergency, the witnesses to be present by means of audio-visual communication technology. The two caveats or exceptions to this are:
- The technology used must allow the participants to see, hear, and speak with one another in real time; and
- At least one of the witnesses must be a lawyer or a paralegal.
The same change has been made for the witnessing of a power of attorney.
Commonly accessible applications can now be used to execute your estate documents remotely. These applications could include, but are not limited to, Skype, FaceTime, Duo, Microsoft Team, and Zoom. If you or a member of your family has a smart phone, laptop or desktop computer, the completion of wills and powers of attorney has just become much easier.
For those clients who do not have access to video conferencing, we can still assist with your estate plan please reach out to us:
Barrie office: 705.737.1811
Midland office: 705.526.2231
Penetanguishene office: 705.549.3114
Orillia office: 705.327.6655
Elmvale office: 705.322.1671
All offices: [email protected]