At the time of posting it is reported that the provincial Cabinet has passed an emergency order authorizing virtual witnessing of Wills for the duration of the Ontario state of emergency. We will report further as more information becomes available.
As addressed in the blog posted on April 6th, there are various formalities involved in the signing of Wills in Ontario, as specifically set out in section 4 of the Ontario Succession Law Reform Act (the “SLRA”). To be valid, a Will must be executed by the testator in the presence of two witnesses, who both sign the Will as witnesses in the presence of the testator. Similar wording is found in the sections of the Substitute Decisions Act, 1992 relating to the execution of Powers of Attorney.
In the past, there has been no question that “presence” implies physical presence. However, as technology has evolved, the concept of a “virtual” presence has become possible. Further, given the current COVID-19 crisis, many people, especially the elderly, are unwilling to risk the exposure that would occur with an “in person” meeting, and both clients and lawyers are seeking alternatives.
An application will be heard this week by the Ontario Superior Court of Justice to address whether the witnessing of a Will can be done remotely, using video-conferencing technology. In the case to be heard, the testator had signed the Will during a Zoom meeting with her lawyer and the lawyer’s assistant. The signed Will was then delivered to the lawyer’s office and a second virtual meeting took place, during which the testator acknowledged her signature on the Will, and the lawyer and assistant signed the Will as witnesses, while the testator watched.
The relief sought is narrow, being that the procedure used in the specific case satisfies the requirements of section 4 of the SLRA. As a result, any finding will be applicable only to the subject Will and the particular procedure used. However, if the relief is granted, there could be broader consequences. An affirmative decision could open the door to similar cases of virtual witnessing, whether involving Wills or Powers of Attorney, being brought before the court for declaratory relief.
Whether prompted by this case, the petition to allow virtual execution of Wills reported in our prior post, the reality of the COVID-19 pandemic, or a combination of the three, it appears the provincial Cabinet has taken the wise step of a time-limited emergency order. Whether virtual execution of Wills remains part of the law of Ontario can be deferred and properly considered outside the current circumstances.
In considering the future role of virtual witnessing, it must be noted that there are also potential risks inherent in the concept. Procedural safeguards are in in place to protect against fraud, forgery, incapacity and undue influence. Contact by video is less reliable than in-person contact and could result in a higher chance that the testator has capacity issues, is subject to improper or undue influence, or that an incorrect version of the Will is signed inadvertently. There are also privacy issues that come into play with meetings that take place on public platforms. Lastly, the fact that the testator acknowledges his or her signature, while the Will is in the hands of the witness, could increase the potential for fraud and forgery.
It will be up to the Superior Court of Justice this week to weigh the anticipated benefits of the requested relief against the potential risks involved and whether the emergency order of Cabinet will impact the decision or reasons.
Stay tuned for further information.