MARKET COMMENTARY

Where There’s A Will There’s A Way

Shaped by COVID-19 realities, seismic change is underway in estate planning. For instance, the ability to sign wills virtually marks substantial change. Is it here to stay?

08.03.2020 - Thomas E. Junkin, Senior Vice President, Personal Trust Services and Operations

"Necessity is the mother of invention." Plato

In the face of COVID-19’s disruptive forces, Plato’s thinking is proving true time and again. Even Canada’s estate laws, which typically evolve at a glacial pace, have undergone seismic change nearly overnight.

The shift of the past few months is even more remarkable, given that laws regarding wills and estates fall under provincial legislation. As a result, there are surprising differences in estate law as you cross provincial borders. The one nationwide thread of continuity has been this: For a will to be valid, it must be witnessed by two adult persons, neither of which are beneficiaries under the will. In addition, the person making the will and both witnesses must be present in the same place, at the same time when signing their names on a will.[1] Fail to meet these requirements and the will is generally invalidated. That was before COVID-19.

Given social distancing, travel restrictions, self-quarantining and the higher mortality risk associated with the pandemic, lawyers who specialize in wills quickly identified the situation’s unintended consequences. Having everyone in the same room to sign a will had become physically impossible. This added to the already heightened anxiety for many people who, for various reasons, recognized the immediate need to have wills in place. Similar concerns surrounded completing power of attorney documents.

Provincial legislatures and law societies worked astonishingly quickly to solve this problem. Between April 1 (Quebec) and May 19, 2020 (British Columbia), six provinces[2] passed emergency orders permitting wills and powers of attorney to be witnessed virtually. This means that, using digital, online communication, the will maker (the testator) and the witnesses must be able to see and hear each other, but don’t have to be in the same room. With this accomplished, the testator signs the document. Then, in most provinces, that same document must be physically sent to the first witness. A new video session is set up so all can view the witness signing the same document. The same process is repeated with the second witness.

In most provinces, one of the two witnesses must be a lawyer. This is quite normal, since lawyers usually act as a witness when they provide legal advice and prepare wills for clients. Emergency legislation, however, makes this mandatory so the lawyer can oversee the signing and provide important advice to the testator.

Only Ontario permits the testator and two witnesses to sign a will in counterparts. Responding to feedback about the cumbersomeness of sending the original will to three different locations, the provincial government quickly amended its order. As a result, during a video conference, each signing party simultaneously writes their name on a printed version of the document. The three signature pages are then assembled to complete one valid document.

It’s also important to understand that no province currently permits a will to be signed by electronic means, even though electronic signatures are permitted for other types of documents. A will must be signed in writing (videotaped wills make entertaining movie scenes but are invalid in Canada) with so-called “wet ink.”

Witnesses Are Critical

Why are will witnessing procedures so specific and why is having two witnesses so important? The short answer: Since a will only takes effect after the will maker dies, that person isn’t able to acknowledge whether the document truly represents their wishes for the disposition of their estate. Witnesses play an essential role as they can testify in court that they were present when the testator signed, that the testator was the age of majority and, most importantly, the testator acknowledged the document to be their last will and testament. Witnesses can also provide corroborating evidence if someone alleges the testator was not of sound mind, or was unduly influenced by someone to make a will they wouldn’t otherwise have made.

When a will is submitted for probate (the provincial court reviews the facts and confirms the legal validity of the document), one of the witnesses will normally provide evidence in the form of a sworn affidavit stating the facts mentioned above. Having two witnesses, instead of one, increases the probability that at least one witness will be available to testify further if needed. Today, most lawyers prepare this affidavit and have it executed immediately after the will is signed and while the witness is conveniently present before the lawyer.

What’s Next?

It’s important to appreciate the unprecedented pace of change experienced lately in terms of allowing virtual witnessing of wills and powers of attorney. The law does evolve, but it’s slowly and surely, supported by much research and study leading to recommendations, which may then require years to implement.

Take, for example, the case of enduring powers of attorney in Canada. This document appoints someone as agent to make financial decisions on behalf of a person, even if that person no longer has legal capacity to understand, or approve what the agent does. Surprisingly, it wasn’t possible to create such a document in Canada until the 1980s. Previously, when a person lost their capacity, you needed a court order to appoint someone to make decisions on their behalf. Today’s power of attorney documents are the result of decades of work.

Other areas of law that affect wills and estates have also taken lengthy periods of time to evolve. For instance, protecting the inheritance rights of commonlaw spouses, including same-sex partners, took many years and some would argue is still incomplete. Today, law reform regarding cutting-edge estate planning issues such as digital assets and human reproductive material is slowly moving forward. In an impatient world, thankfully the disciplined thought and background built into our laws remain, although the time it requires sometimes seems out of sync.

Looking at virtual witnessing in this context, a few things are certain. Every province that now permits virtual witnessing had originally said the special, temporary rules were to end when the provincially-declared state of emergency ends. However, late in June, the government of British Columbia introduced legislation designed to carry the virtual theme forward, including allowing the courts to accept electronic wills, permit the remote witnessing of wills by people in different locations, allow for electronic signatures, and no printed copy of the will.[3]

Perhaps this is the first sign of more permanent things to come right across Canada. Given the state of current technology and people’s love of convenience, virtual witnessing of wills and power of attorney documents may become a standard practice sooner than we expect.

 

 

Footnotes:

1. There are two main exceptions to this generalization. In Quebec, the most common form of will is a notarial will, which is signed by the will maker, the notary and just one witness. In addition, some, but not all provinces, recognize a holographic will, which is made entirely in the handwriting of the will maker and does not require a witness.
2. The four Atlantic provinces have not yet (as of June 22) passed laws permitting virtual witnessing of wills or powers of attorney.
3. Kevin Zakeski, “Amendments to the Wills, Estates and Succession Act enable electronic wills and electronic witnessing of wills,” British Columbia Law Institute, June 23, 2020, https://www.bcli.org.

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Thomas E. Junkin, Senior Vice President, Personal Trust Services and Operations

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