Since April 7, 2020, the Ontario government has permitted the virtual witnessing of Wills and Powers of Attorney pursuant to an Emergency Order made under the Emergency Management and Civil Protection Act.
In Ontario, a valid Will or Power of Attorney must be signed in the presence of two witnesses under the Succession Law Reform Act and the Substitute Decisions Act, 1992, respectively. (Note – holograph wills that are wholly handwritten by the testator and signed by the testator are exempt from the statutory witness requirement). Wills and Estates lawyers were experiencing difficulties complying with the statutory witness requirements due to physical distancing rules and the increased risk from COVID-19 to the elderly and persons with certain medical conditions. Accordingly, the Emergency Order was welcome relief to Wills and Estates lawyers and their clients.
Under the Emergency Order, a Will or Power of Attorney can be signed in the presence of two witnesses using “audio-visual communication technology” which is defined as “any electronic method of communication in which the participants are able to see, hear and communicate with each other in real time”. Zoom, FaceTime, Skype and other video conferencing software have been used to satisfy this requirement. In addition, at least one witness must be a lawyer or paralegal licensed to practice in Ontario.
However, the procedure under the Emergency Order proved to be cumbersome because a Will or Power of Attorney requires “wet” signatures on the original document, and accordingly, the original document had to be sent to three different locations and three separate video conferences were required.
On April 22, 2020, the Emergency Order was amended to alleviate the problem by adding a counterparts clause permitting the three signatures to be signed on “complete, identical copies of the [Will or Power of Attorney] in counterpart, which shall together constitute the [Will or Power of Attorney]”. This amendment allows the execution of the Will or Power of Attorney to take place in one video conference. The Amended Emergency Order can be found here.
If you require legal advice or legal representation in respect to wills, estates and trusts or any other matters, please contact us for an initial consultation. Our lawyers have the required expertise and experience and are here to assist you in resolving your legal issues.
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