An estate plan prepares you for the “what ifs” in your lifetime. In the midst of the COVID-19 pandemic we realize more than ever the importance of having our proper plans in place.
Some might be reviewing the Will and Powers of Attorney made a decade ago. Others are deciding to make their estate planning documents for the first time. For some, you have made up your mind and put in the time, your intentions are clear, and your lawyer has properly laid out your plans in your documents. You are finally ready to sign your documents, but social distancing prevents your legal team from meeting with you in person to act as witnesses.
Execution of a Will
Ontario has stringent requirements for the execution of a Will. Under section 4 of the Succession Law Reform Act (the “SLRA”), in order to be valid:
- your Will must be signed at its end by you;
- you must make or acknowledge the signature in the presence of two witnesses; and
- two witnesses must sign your Will in your presence.
COVID-19 and social distancing makes it challenging to meet the statutory requirement to sign a Will in the physical presence of two witnesses. Further, not everyone can be a witness to your Will. A beneficiary or a spouse of a beneficiary of your Will should not be a witness (s. 12(1), SLRA). Otherwise, the gift to that beneficiary may be void.
While social distancing or self-isolating, you cannot meet with anyone but your close family members with whom you live, and they might well be beneficiaries of your Will. Moreover, if you live alone or you live in a long-term care facility which is locked down, arranging for witnesses is even harder. Therefore, it may be impossible to arrange two independent witnesses during the current circumstances. Then, what is our option?
Can I make a Holograph Will?
The only option available to those who want to make a Will but cannot arrange two witnesses is to write a holograph Will which is permitted under the current legislation. Pursuant to section 4 of the SLRA, you may make a valid Will wholly by your own handwriting and signed by you. Witnesses are not required to make a holograph Will. However, a holograph Will is not ideal, especially for those who have complex affairs, plans, and family relationships. Holographic Wills are prone to mistakes and ambiguities, and are generally not appropriate for those who have young children or children with special needs who can benefit from testamentary trusts (See our newsletter on holograph Wills in Ontario.
As an alternative to executing a formal Will while witnesses are not available, estate planners in Ontario are discussing whether we can make a holograph Will which incorporates a typed Will by reference (see the article by Jordan Atin, Hull & Hull LLP, on this issue). As there is a conflicting case law on the effectiveness of this method, special caution is required.
Execution of Powers of Attorney
The rules for the execution of a valid power of attorney for property and personal care are as strict as those for Wills. Pursuant to the Substitute Decisions Act, 1992, you must sign your continuing power of attorney for property and power of attorney for personal care in the presence of two witnesses. Further, unlike holograph Wills, our law does not allow us to make holograph powers of attorney.
Is virtual witnessing our future?
While we cannot meet people in person, we are blessed to have the technology which allows us to have a virtual “face-to-face” meeting with others by videoconferencing such as Skype, Zoom, or FaceTime. Estate planners in Ontario are currently looking for a way to fill this critical gap in our legislation to respond to the reality of social distancing during this difficult time.
NoticeConnect, an online publisher of estates related notices, has launched a petition for the Ontario Government to amend section 4 of the SLRA to allow virtual witnessing of Wills.
It is also expected that the Ontario Superior Court of Justice will hear an application in the coming days where the applicants, an elderly married couple, will argue the “presence” of a witness may be interpreted to include a virtual presence utilizing technology such as the video conferencing service, Zoom.
We are closely watching the development of this court case and possible legislative change on the requirements for the execution of Wills and Powers of Attorney.
Pallett Valo lawyers are continuing to assist our clients with their estate planning needs during the COVID-19 pandemic. Please do not hesitate to contact us.
Stay well and safe!