In my blog distributed to you on April 7, 2020, I told readers to stay tuned as hundreds of years of strict formalities might soon change due to Covid-19. But little did I know that these changes would come later that very day in two jurisdictions: my home province of Ontario and our neighbour, New York State.
On April 7, 2020, the Ontario Government released an emergency Order which temporarily allows for the virtual execution of wills and powers of attorney by means of “audio-visual communication technology”.
The Order requires that one of the two witnesses must be an Ontario licensed lawyer or licensee. The profession is now grappling with the logistics of executing wills and powers of attorney using services such as Zoom, Go to Meeting and Webex, and how to use a video conference while still following the witness requirements under Ontario legislation. It seems that to do so, there must be at least two video conferences, so that the witnesses can also sign the documents once received in the presence of the testator/grantor and in the presence of each other if they are together, or three video conferences if they are not together, to meet the requirements of Ontario legislation.
It is progress, provides an additional option for executing estate planning documents during this crisis, and hopefully will lead to long term permanent changes to adopt technology in the execution of estate planning documents. We hope that there will be no going back, as by this baptism of fire we learn, adapt, and then appreciate the many benefits of virtual options.
Meanwhile, on the same day of April 7, 2020, Governor Andrew Cuomo issued an Executive Order in New York State permitting video execution of wills, powers of attorney, health care proxies, deeds and other documents. The Order, unlike the Ontario one, sets out a number of provisions which must be met and changes the witness requirements with regard to the need for the witnesses signing in the presence of each other and the testator. The Order requires procedures for the identification of the person whose signature is being witnessed, and that the witnesses receive a copy of the signed pages by fax or electronic means on the same day the pages are signed by the person. After that, the witnesses may repeat the witnessing of the transmitted copy of the signature pages and transmit them back to the person and they may repeat the witnessing of the original signature pages as of the date of execution provided they receive the original signature pages together with the electronically witnessed copies within thirty days after the date of execution.
No doubt in the next short while other jurisdictions will move forward to introduce similar emergency orders and likely with many variations. It will be interesting to see whether the requirements become more workable and less cumbersome with more consultation and input.
Meanwhile, there are a variety of options for executing wills with witnesses during Covid-19. The optimal approach to use will depend on each individual circumstance, including using appropriate physical distancing where that is possible.
— Margaret O’Sullivan