As of April 7, 2020 and for the duration of the COVID-19 emergency, an emergency Order In Council was made under s.7.1 of the Emergency Management and Civil Protection Act, allowing for Ontarians to sign their Will and Powers of Attorney documents with the use of virtual witnesses.
To be clear, this means that at least one of the witnesses must be a licensee under the Law Society Act. Further, the Order confirms that the age-old requirement that Wills be witnessed “in the physical presence” of the testator may now be done via audio-visual communication technology; this could include the use of platforms such as Skype, FaceTime and Zoom.
Normally Wills and Powers of Attorney documents must be signed in the physical presence of two or more witnesses under the Succession Law Reform Act and the Substitute Decisions Act. With Covid19, estate practitioners are conducting virtual meetings and many have already begun virtual signings. While there are limitations to virtual meetings, in the interim, we must make do with what we have. Some adaptations of usual practices with Covid19 in mind, include:
1. Client Identification
In light of Covid19, the Law Society is not requiring face-to-face meetings to verify your client’s identity. Face-to-face verification via video conferencing is permitted. Stay alert to any red flags. Considering requesting that your client send their ID in advance of the video conference and ask the client to show the original identification documents during the video conference. Record, with the applicable date, the method by which you verified the client’s ID.
2. Client Meeting
Identifying and assessing issues of capacity and undue influence are difficult to do when your client is not sitting directly in front of you. However there are ways around this. When acting for one client, ensure your client is alone in the room; you can do this by asking your client to show you the entire room via video. WEL Partners has created a thorough list to identify undue influence during videoconferences, which can be found here.
3. Will and POA
When you go over the Will and POA documents with your client, it is important to ensure that your client understands exactly what they are signing. Many virtual platforms allow for screen sharing, that way you or your client can highlight and go over any particular section they might have additional questions on and to make sure your client is following along with you.
4. Affidavit of Execution
Your Affidavit of Execution should be updated to reflect the circumstances of the signing, in particular, that it was a virtual meeting with the Covid19 emergency in place. Hull and Hull provides a sample Affidavit of Execution.
5. Reporting Letter
Once your client has executed their Will and POA documents, your reporting letter should confirm that you met and executed the Will virtually and the circumstances in which the documents were executed. You may want to suggest (while not required) that once social distancing measures are lifted, your client can re-execute their testamentary documents in the physical presence of witnesses.
COVID-19 is an unprecedented situation, it is important to stay up to date with the latest developments in the law and any temporary measures you need to implement in your practice. While there is no specific end date in sight, lawyers should continue to monitor the Order.