It Takes a Pandemic: The Challenge of Executing Estate Planning Documents During Covid-19

Executing estate planning documents during a global pandemic is a problem facing lawyers throughout many parts of the world.

Traditional formalities for wills and powers of attorney are stricter than for most legal documents. In Ontario and many common law jurisdictions, the law requires a will to be in writing and signed at the end by the will-maker in the presence of two witnesses, who each in turn sign the will in the presence of the will-maker and each other. The same process must be followed in Ontario for a continuing power of attorney for property and for personal care. Holograph wills are an exception – they must be in one’s own handwriting and signed but do not require witnesses. As well, members of the Canadian armed forces on active service can sign a will without witnesses, as further discussed below.

Due to Covid-19, many people are concerned about updating their estate planning, in particular front-line health care workers. But how to do so, and still stay safe and follow physical distancing given these strict witnessing requirements?

As you read this blog, pressure is being placed on governments and law societies worldwide to amend legislation to relax strict rules, and in some cases bring the execution of wills and powers of attorney into the digital age.

In a prior blog, “Going Paperless: Electronic Wills” which I wrote in February 2018, I described the movement to update the law to move to electronic wills.

Historically, the reason for such strict formalities is to prevent fraud and to help ensure that these important documents reflect a person’s free will. After all, unlike a contract where the parties will often still be available to testify about what they signed, in the case of a will, the testator will not be around to do so.

The policy reasons advanced for digital wills include convenience, efficiency, accessibility, safekeeping and security, and the current pandemic adds a further one: personal health and safety.

In Ireland, the Law Society has advised that it is permissible to execute a will through a window of a home or a car in response to Covid-19. In the U.K., government is considering relaxing the rules for execution, including amending legislation to mirror the provision that allows for military-style wills to be signed which do not require a witness.

In Quebec, which follows the civil law tradition and has notarial wills which are signed in the presence of a notary, legislation has now been passed to allow a notarial will to be signed virtually.

Closer to home, in Ontario a petition has been made to the Ontario government to amend our wills legislation to allow for a will to be witnessed virtually using a video conference, so that either virtual presence or physical presence of the two witnesses with the will-maker would be allowed.

Whatever the solution, it seems that a legislative fix will be necessary to change the rules as the formalities for executing a will are prescribed by legislation.

It is of interest to note that Section 5 of the Ontario Succession Law Reform Act allows for members of the Canadian armed forces to make a will in writing which is signed by the member or some other person in his or her presence and at his or her direction without the presence of witnesses.

In this war against the coronavirus, should legislation be amended to allow unwitnessed wills and powers of attorney for a limited time period? And with the possible addition of confirmation by a telephone call with the person and their lawyer who could swear an affidavit that the client advised they signed the will and powers of attorney and that they did so of their own free will? After all, not everyone will find a video conference possible, including those who may not be computer savvy or own a computer or other device, which includes many of our most vulnerable elderly citizens.

Meanwhile, a court application has been commenced by an Ontario lawyer to be heard this week seeking a court order to hold a will executed virtually by video conference to be a valid will.

Stay tuned. Hundreds of years of strict formalities for signing wills may soon change because of the pandemic.

The wheels of justice traditionally move very slowly, but the urgency of this pandemic and the need for each of us to be prepared, and to have the peace of mind that our estate plans are in good shape to cope with it will likely in only a few short weeks result in changes that otherwise would take years to accomplish.

Keep safe and keep well as we all move forward to meet these challenges together.

-Margaret O’Sullivan

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.
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