As the world shut down in early March 2020 and the constant stream of statistics around the severity of COVID-19 poured in through every form of media, thoughts of one’s own demise were difficult to ignore. Estate planning became a prominent thought in many Canadians minds.
While most estate planning meetings take place in a lawyer’s office, sitting around a boardroom table discussing succession plans and wishes, that was not something that could be done during the last three months. Physical distancing requirements instituted by federal, provincial and in some cases, municipal bodies, meant that in-person meetings would not be possible.
Traditionally, a Will-maker (the “Testator”), must sign their Will in the physical presence of two witnesses. In Alberta, the legislation relating to the formal requirements of executing a Will are contained in the Wills and Succession Act which requires that:
- the Will be in writing;
- it be signed by the Testator in the presence of two witnesses who are both present at the same time; and
- each witness signs in the presence of the Testator.
The first witness is usually the lawyer that drafted the Will, while the second witness cannot be a beneficiary under the Will, an executor of the Will, or the Testator’s spouse. As such, this person is usually an independent arm’s length party who does not have any relationship with the Testator. Similarly, a Power of Attorney and Personal Directive requires the signature of a witness who has not been named in the document as an Attorney or Agent. Not surprisingly, Covid-19 has created challenges with trying to meet these requirements while still abiding by the physical distancing restrictions or in some cases, the requirement to quarantine.
In consideration of the foregoing, exceptions would be necessary. The following is a summary of how some Provinces have adapted:
On April 1, 2020, Quebec approved Order 2020-010, which allows for the virtual witnessing of Notarial Wills.
On April 7, 2020, Ontario enacted Regulation 129/20 to the Emergency Management and Civil Protection Act (“EMCP”), which provides that Wills in Ontario can now be witnessed through videoconferencing or similar methods. On April 22, 2020, the EMPC was amended to allow the witnessing of Wills to be done in counterpart.
On April 16, 2020, the Government of Saskatchewan enacted The Wills (Public Emergencies) Regulations which allows for the virtual execution or remote witnessing by “electronic means”. This means that estate planning may now be accomplished by using meeting platforms such as Zoom, GoogleDuo, GoToMeeting, FaceTime or Skype.
On May 15, 2020, the Government of Alberta enacted Ministerial Order 39/2020 (the “Ministerial Order”), which allows for virtual witnessing of a Will, Power of Attorney or Personal Directive. Essentially, the Ministerial Order deems persons to be in each other’s presence while connected to each other by an electronic method of communication in which they are able to see, hear and communicate with each other in real time.
Although we can virtually witness Wills in Alberta, as the Ministerial Order currently stands, Wills cannot be witnessed in counterpart in Alberta like they can in Ontario or British Columbia. Without the ability to witness in counterpart, the original document signed by the Testator will need to physically be sent to each witness to be signed.
This Ministerial Order will lapse at the earliest of the following events:
- 60 days after the Order in Council 080/2020 (Order declaring a Public Health Emergency in Alberta) has lapsed;
- When the Order is terminated by the Minister because the Minister has determined the order is no longer in the public interest; or
- When the Order is terminated by the Lieutenant Governor in Council under the Public Health Act.
On May 19, 2020, British Columbia’s Minister of Public Safety and the Solicitor General released the Ministerial Order no. M161, allowing the electronic witnessing of Wills.
With the approval of virtual witnessing of Wills in Quebec, Ontario, Saskatchewan, Alberta and B.C., estate practitioners can continue to assist clients by taking instructions for estates documents via video conference and telephone. As restrictions start to lift, in office meetings will be available for clients to meet in person with their lawyers negating the need for virtual witnessing for most. However, the relaxation of the rules will be welcome news for those diagnosed with Covid-19 or someone who is a member of the ‘at-risk’ population. In these cases, the approval of virtual witnessing will allow those who are still required to be isolated or socially distanced the opportunity to complete their estate planning.
Although the Ministerial Order is in force, there are still risks and concerns with respect to foregoing the normally stringent formalities of witnessing estate documents. The requirement that documents be signed in the presence of witnesses and contain ‘wet-ink’ signatures is to allow the lawyer to ensure the Testator has the requisite mental capacity to sign the documents, as well as safeguarding against undue influence to the Testator. While virtual witnessing is a great tool, it does not provide for the same reliable contact that in person meetings do. As such, lawyers will need to be extremely vigilant in confirming that the testator has the necessary capacity and is not subject to improper or undue influence.
As it stands now, it does not appear that virtual witnessing of estate documents is here to stay, but in the meantime, it provides a novel solution to ensuring estate documents can continue to be drafted and executed in the midst of a pandemic. In these unprecedented times, it just goes to show, necessity is still the mother of invention.
 S.A., 2010 c.W-12.2, section 15