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An Update on Virtual Witnessing and Electronic Wills

One of the most common questions our clients ask is whether they can sign their Wills and Powers of Attorney with an electronic signature. Our lives are getting busier, our goal of reducing paper waste is more focused, and clients are understandably questioning the historically strict formalities of executing estate planning documents. These questions have only increased in the face of a global pandemic.

As we approach the 1-year mark from which the first presumptive case of Covid-19 was reported in Ontario, it is good to see that the Ontario legal system has taken many steps to adapt to our changing needs in more modern ways.

For example, clients are now able to meet with their lawyers virtually to commission affidavits, e-mail is an acceptable means of service (replacing the older methods of fax and even telegram), and, most notably in the estates community, Wills and Powers of Attorney can be signed virtually.

Virtual witnessing and signing was permitted on April 7, 2020 by Emergency Order. This “temporary” Order has been expanded and extended several times, most recently to December 21, 2020, and it is likely to be extended again.

We have previously examined this shift to virtual witnessing in our blog posts on April 7, 2020 and virtual execution of estate planning documents on April 13, 2020.

Although the Ontario government has taken great steps to bring us into the virtual world, has it gone far enough?

In British Columbia, for example, new legislation has been introduced to allow electronic Wills, making it the first Canadian province and one of only a handful of jurisdictions worldwide to do so. The legislation allows for virtual witnesses and permits BC residents to execute Wills using electronic signatures. It also addresses some of the other concerns such as digital storage and revocation, important where there is no physical “original” document. This legislation is a step firmly into the digital world, and the question of whether electronic Wills should be accepted in Ontario will again arise.

Electronic Wills or the use of electronic signatures will no doubt expedite the Will execution process. It would arguably be easier to arrange a quick virtual signing meeting rather than try and find a mutually agreeable time for the testator and two witnesses to meet. It would also eliminate the need for the client to come to the lawyer’s office to sign, which is appealing for the globe-trotting client who travels for business or spends time in warmer climates during the winter months (when it’s safe to do so again, of course!). Anything that makes it easier and faster for our clients to have an estate plan in place is undoubtedly a good thing.

However, it is still helpful to remind ourselves why we adhere to strict legal formalities in executing Wills and Powers of Attorney in the first place. There are a unique set of concerns for the execution of estate planning documents which differentiates them from other documents, for example commercial documents, which can generally be signed digitally.

Ontario legislation requires that a Will be in writing and signed by the testator in the presence of two witnesses, who also sign the Will together in the presence of the testator. These requirements are a means to ensure that the Will is made without any undue influence or even fraudulently. When a lawyer is serving as one of the witnesses, their role is not just to be a witness but also to confirm that the testator has the requisite capacity to sign the Will and that they fully appreciate the nature and contents of it. There are similar requirements for Powers of Attorney.

In examining the place for electronic Wills and signatures in Ontario, there is the concern we will place the more vulnerable members of our society at higher risk of undue influence for the sake of making it easier to execute a Will.

Even in cases where there are no concerns of incapacity or undue influence, we must remember that not all clients may be comfortable with this growing reliance on technology: some are not as tech savvy as others, and these individuals are understandably wary and uneasy of the digital world as it relates to highly sensitive matters such as their financial affairs and family dynamics.

A global pandemic has caused us again to re-examine how Ontario’s traditional formalities for estate planning do not necessarily reflect the digital age we are in. It is a perfect time to scrutinize these requirements and see where we can expand and modify our existing practices without forgetting the reasons for these requirements in the first place.

In taking a holistic look at the pre- and post-pandemic practices in wills and estates, we can best determine when it is or is not in our client’s best interest to embrace the new technological means for Will executions.

Our clients, and maybe the trees, will thank us.

— Stephanie Battista

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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