Understandably, the Covid-19 pandemic has led many people to think about estate planning. The trouble, of course, is that the traditional approaches to Wills and Powers of Attorney are not always feasible at the moment. Fortunately, there are viable workarounds, so estate planning does not need to be put on hold.
The problem is simple: A Will or Power of Attorney typically requires the signature of one or more witnesses to be considered valid. In a time when social distancing is highly recommended by health authorities, in-person witnessing may not be safe.
Does this preclude individuals from moving forward with key estate planning documents?
In short, no.
Some provincial governments have recognized that it may not be practical for all necessary signatories to be in one room. As a result, they have enacted emergency measures designed to allow people to create valid Wills and Powers of Attorney.
Here’s a quick rundown of what’s been announced and how the new process works:
During the state of emergency, Ontario, Saskatchewan, and Manitoba are allowing virtual witnessing of Wills and Powers of Attorney for Property and Personal Care. Software such as Zoom or Microsoft Teams may be used for this purpose.
The person making the Will or Power of Attorney must sign the document. Meanwhile, the witnesses are permitted to watch the proceedings online via video conferencing. At least one of the witnesses must be a lawyer or paralegal (the latter is only permitted in Ontario).
For the witness signing element of the process, there are two options available:
1) The Will or Power of Attorney can be physically sent (by courier, for example) to the witnesses. One witness would sign, after which the document would then need to be sent to the second witness for their signature. This person would then return the document to the individual doing the estate planning.
2) Alternatively, the witnesses can sign their own copies of the Will or Power of Attorney. Following this, the signature pages would be compiled into one document, likely by a lawyer or paralegal.
Some provinces (such as Alberta, British Columbia and Nova Scotia) have not yet introduced emergency legislation to deal with the problem of witnessing Wills or Powers of Attorney during the pandemic. That said, it may still be possible to validate such documents, but a court order could be required.
Virtual Changes are Temporary
Importantly, virtual witnessing is only scheduled to be allowed during provincial states of emergency. Once they’re lifted, only the traditional approach to signing and witnessing Wills and Powers of Attorney will be valid.
It’s Not Quite Out with the Old Way
Some lawyers are still executing wills the old-fashioned way (i.e. in person). If this avenue is pursued, mind you, caution needs to be taken with regards to physical distancing so as to reduce the risk of any Covid-19 transmission. Especially these days, staying safe is the best approach.