Sometimes people, including other lawyers, like to joke to us Wills, Estates & Trusts practitioners that nothing new has happened in our practice area in the last 300 years. While it’s true that many elements of Wills, Estates & Trusts law are very old, every area of the law has seen changes in recent years – including ours!
Many of these changes have arguably been long overdue. Our practice area has now very much entered the 21st century with updates to how Wills and Powers of Attorney can be executed.
For many, many years a Testator (the person making the Will) had to physically meet with two neutral witnesses, both of whom had to sign the Will after the Testator signed. All three people had to remain physically together through this whole signing process. If a client became ill, this often meant that I had to go to the hospital quickly with one of my assistants or clerks, to help the client sign his or her Will. Essentially the same rules applied to the execution of Powers of Attorney (POAs), with the exception being for “holographic Wills” (Wills that are wholly in the Testator’s own handwriting – they are still permitted and can be valid without witnesses, but there is no such thing as a “holographic POA”).
The pandemic prompted a huge number of inquiries from people keen to get their Wills and POAs in place – but how could we help clients execute their documents if it was unsafe for us to physically meet with them, and if they weren’t able to physically meet with friends or other potential neutral witnesses who were outside of their “bubble”? To its credit, the Ontario government responded fairly quickly and allowed Wills and POAs to be executed virtually, as long as a licensee with the Law Society (i.e. a lawyer or paralegal) acted as one of the two neutral witnesses.
What is virtual execution? Basically, if clients can see and hear us, and we can see and hear them simultaneously using audio-visual communication technology (like Zoom), then we can be deemed to be in their “presence” for Will and POA execution purposes.
To be clear, virtual execution is not the same as permitting electronic signatures. People cannot sign their Wills or POAs electronically (e.g. with DocuSign or other programs) – original handwritten signatures in ink are still required.
Virtual execution has proven itself to be extremely popular, especially in light of the continued safety concerns involved with meeting in person, so thankfully the virtual execution rules are becoming permanent. As such, if you are seeking to get your Will and POA done, but are nervous about coming into our office, please don’t hesitate to reach out to us to see if virtual execution is the right option for you.
As a final note, with respect to Wills, Ontario has long been a “strict compliance” jurisdiction, which means that if a Will isn’t executed correctly, too bad – it would be invalid and therefore ineffective. While great effort should always be taken to ensure that a Will is executed properly (whether in-person or virtually), it appears that Ontario may soon be giving judges some discretion to nonetheless allow Wills which are “substantially compliant” with legislative requirements to be accepted as valid Wills. The Substitute Decisions Act, 1992 already gives judges some discretion to approve improperly-executed POAs. This update, if passed, will bring Ontario in accordance with most other Canadian provinces, which already permit judges to approve or disapprove improperly-executed Wills on a case-by-case basis.
To learn more about these important updates, or if you have any questions about this article, please reach out to one of our Wills, Estates and Trusts lawyers today.
