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Remote Signing and Witnessing of Wills – What Is Legally Permitted?

Published on: May 2021 | What's Trending

Couple signing a document virtually while a businessman watches them on screen

As discussed in previous blogs, over the course of the past nine months, the provincial government has been making various amendments to estate legislation, which have both procedural and substantive impact.

Among other things, Schedule 9 of the Accelerating Access to Justice Act, 2021 (the “Act”)[1],  makes amendments to the manner of execution and witnessing of Wills under the Succession Law Reform Act (“SLRA”), by permitting the use of audio-visual communication technology for the signing and witnessing of Wills.

The Act creates two distinct periods of time for remote signing and witnessing.

  1. Phase 1: Subsection 1(1) of Schedule 9 is retroactive to April 7th, 2020.  It codifies the emergency regulations that the government put in place during the ongoing COVID-19 pandemic.  Those provisions will be repealed when Phase 2 below commences.
  2. Phase 2: Subsection 1(2) of Schedule 9 will come into force on a date to be named by proclamation of the Lieutenant Governor, which may be May 20th, 2021[2].  From the date of proclamation onward, the provisions set out in subsection 1(2) of the Bill will govern remote signing and witnessing.  The Phase 2 provisions make various amendments to the Phase 1 provisions, which appear to be more restrictive in certain respects.
Remote signing and witnessing of Wills have been applied by estate practitioners[3] in two ways:
  1. By circulating the Will, once signed by the testator, and conduct either one or two additional remote signing meetings for the witnesses to subscribe the same original Will signed by the testator (“Circulation Method”); or
  2. To have counterpart copies of the Will, all of which are executed and subscribed at the same remote signing meeting, one counterpart by the testator and one counterpart by each of the witnesses – up to three copies of the same Will that must then be combined to form the valid Will (“Counterpart Method”).[4]

One issue that has been raised is that the amended terminology in subsection 4(3)(b) could be interpreted as limiting remote signing and witnessing of Wills to the Counterpart Method.[5]

New section 4(3)(b), which applies only to remotely signed Wills, requires that the witnesses sign the Will contemporaneously with the testator signing or acknowledging the signature on the Will.

Historically, the common practice for most estate practitioners has been for the testator and the witnesses to sign the Will contemporaneously.  However, contemporaneity has not been a requirement under the legislation until now.

With in-person signing and witnessing, the SLRA allows for all three signatures to happen at different times.  The only contemporaneity requirement is that the testator sign the Will or acknowledge the signature on the Will in the presence of two witnesses at the same time.[6]  In the words of Professor Albert Oosterhoff:

If the testator has signed the will out of the presence of the witnesses, he or she must acknowledge the signature in the presence of both witnesses, present at the same time under section 4 of the Succession Law Reform Act. The witnesses must then sign the will in the presence of the testator, although not necessarily in each other’s presence.[7]

As stated above, one interpretation that has been voiced is that the Circulation Method will cease to be available given the new requirement of contemporaneity.   However, nothing in the wording of new section 4(3)(b) precludes the acknowledging of the signature on the Will by the testator at the time the Will is subscribed by the witnesses, thereby permitting the Circulation Method.  It appears that the only additional requirement may be that at each of the subsequent subscription meetings, both witnesses are virtually present during the acknowledgement by the testator of the signature on the Will, and the subscription by each witness.  Since the acknowledging of the signature must be in the presence of both witnesses, and the subscription by a witness must be contemporaneous with the acknowledgment, by necessity, the subscribing by each witness, whether at the same or in consecutive meetings, must be in the presence of the testator and the other witness.

If this interpretation is correct, practitioners should still be able to use either the Circulation Method or the Counterpart Method to have Wills signed and witnessed remotely.  The intended interpretation will need to be clarified by the office of the Attorney General as soon as possible, to ensure that estate practitioners do not inadvertently act in contravention of the legislation.

Unfortunately, the amendments to the Substitute Decisions Act, permitting remote witnessing of Powers of Attorney, do appear to be limited to the Counterpart Method.  There is no provision that a grantor of a Power of Attorney be able to acknowledge his or her signature at the time the witnesses are subscribing the Power of Attorney.  Because there is a requirement that the execution of the Power of Attorney (by the grantor) and the subscription by the witnesses be contemporaneous[8], the only way that remote witnessing could occur with Powers of Attorney appears to be by counterpart.  Again, clarification may be needed before the provisions are proclaimed in force.

[1] Formerly known as Bill 245.

[2] See J. Atin blog: https://www.e-stateplanner.com/post/single-remote-signing-option.

[3] Note, both Phase 1 and Phase 2 require that one of the remote signing witnesses must be a licensee within the meaning of the Law Society Act.

[4] The number of meetings and counterparts could be fewer if the testator signs in the physical presence of one witness, or if the witnesses are in each other’s physical presence, thereby signing the same counterpart.

[5] See J. Atin blog: https://www.e-stateplanner.com/post/single-remote-signing-option.

[6] SLRA clause 4(2)(b) [formerly 4(1)(b)].

[7] Oosterhoff, A. H.; Text, Commentary and Cases on Wills and Succession, 3rd ed, Carswell, p.217, referencing Re Gunston [(1882), 7 P.D. 102 (C.A.), which held that the witnesses were not required to see the testator actually sign the Will.

[8] Schedule 8, s. 1(2).