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Apr 8, 2020

Virtual Witnessing of Wills and Powers of Attorney Allowed

By: Ronald Appleby, QC, A. Lorne Greenspoon, Michael Gasch, David Schlesinger, Errol Tenenbaum, Faye Kravetz, Heela Walker, Jennifer Lynch and Amanda Laren

On April 7, 2020, the Ministry of the Attorney General announced an emergency order under the Emergency Management and Civil Protection Act, allowing for the witnessing of Wills and Powers of Attorney through the use of real time audio-video conferencing technology, provided that at least 1 of the 2 witnesses to the document is the licensed Ontario lawyer who drafted the document. Prior to yesterday's announcement, an individual wishing to validly sign a Will or Power of Attorney in Ontario would have only been able to do so in the physical presence of 2 witnesses in order to meet the strict witnessing rules required by the Succession Law Reform Act of Ontario. During the Covid-19 pandemic, this requirement would expose all 3 individuals to risk, assuming they were even willing to meet.
 
Although only temporary, during these stressful times the change is a welcome and necessary one, as it enables individuals wishing to sign Wills or Powers of Attorney for Property (financial) or Personal Care (health) and their drafting lawyers the ability to do so while maintaining social distancing and self-isolation protocols. These emergency measures will expire at the cessation of the declared emergency under the Emergency Management and Civil Protection Act, following which the standard rules will again apply.
 
Access to digital technology is an obvious requirement in order to take advantage of the new rules. However, for those without access or with an aversion to using such technologies (for privacy or other reasons), a holograph Will, which must be entirely in the testator's handwriting, may also be considered as a method of executing a Will. No witnesses are required in order to validate the signing of a holograph Will by the person who writes it. However, there are other limitations which may make the use of a holograph Will less than desirable, such as if the person writing the Will does not have the physical strength to write it, and more commonly, if he or she did not obtain legal advice there may be interpretation issues that arise after the death of that person. There are no similar handwritten documents for Powers of Attorney. As a last resort, a Will could be signed in accordance with the formal "pre-emergency" rules, which would still require some physical proximity to the witnesses, which could not be accomplished without offending the social distancing rules.
 
These resources are intended as informative guides for you and do not constitute legal advice. We invite you to contact one of our tax and estate planning lawyers to review which Covid-era signing method is suitable for you.
 
We look forward to continuing to work with you and wish you and your loved ones continued good health.


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