Good News: Wills and Powers of Attorney Can Now Be Signed by Counter-Parts Using Audio-Visual Communication Technology

Published on: April 2020 | What's Trending

Paper with a wax stamp printed on it

Options broaden during Ontario’s emergency measures, for the signing of Wills and Powers of Attorney by audio-video conference. Information continues to flow at lightning speed about changes to our practices during the coronavirus pandemic, and the good news is that today Ontario’s emergency Regulation, made under the Emergency Management and Civil Protection Act, was amended to allow the witnessing of Wills and Powers of Attorney by counter-parts when using audio-visual communication technology.

It is still a requirement that one of the witnesses be a licensee member of the Law Society of Ontario.

It is still also essential that all three parties (the testator and both witnesses) can all hear one another, can all see one another and that they actually all witness each other signing. Access to the required technology and some basic technical skills will also still be implicitly required. It will be essential that all three parties are actually signing the same document. Lawyers will need to take the time to ensure that everyone has a copy of the same document during the signing and witnessing process.

Lawyers also need to remember their professional responsibilities for ensuring that their clients have the required capacity for signing, satisfying themselves that the client is not being unduly influenced, and that their clients understand what it is they are signing. All the same due diligence required before the pandemic, is still required. It will be more important than ever, to make good notes and records about exactly how the execution and witnessing of these documents was performed, as third parties relying on these documents will likely have questions about the validity of the documents, and we can expect these measures will result in increased challenges to Wills and Powers of Attorney, particularly if the testator or grantor, is a vulnerable person.

Consider also how the jurat and testimonium clauses will need to be changed to accommodate these arrangements and do not forget that the Affidavits of Execution are still an important part of the process.

Because mistakes can inevitably happen and this option is not perfect, or fool-proof, we are still recommending that our clients who choose to use this option for signing their Wills and Powers of Attorney, meet with us in person when the emergency has passed, to re-sign their Wills and Powers of Attorney using the more conventional, person-to-person-to-person method. This will significantly reduce issues around obtaining probate or legal challenges to the documents, down the road.

Having the option to virtually sign Wills by counterpart will now significantly reduce the time it takes to complete a Will while physical distancing measures are still in place, which is particularly important for those whose health is already precarious and for those vulnerable to the coronavirus and who do not want to be in the physical presence of their two witnesses.

Remember that this Emergency Order is only in effect for the duration of the province’s emergency. When the state of emergency has been cancelled, this convenient measure for signing Wills and Powers of Attorney will end, and any Wills or powers of attorney signed virtually (whether by counter-parts or not) thereafter, will not be valid.

Anyone who wants to make a last Will and Testament, Power of Attorney for Property or Power of Attorney for Personal Care during this pandemic should consult with a legal professional about their options and about how to best carry out the required steps to ensure that their documents are valid.

See our previous related blogs here and here.