Estate planning during the pandemic
One of the questions we receive frequently is, “Why do I need a will?” People stammer and start, don’t want to discuss it and avoid the topic completely. These days, it’s more important than ever. All of us who love our families have an obligation to take this simple step to ensure their continuity, if something should happen to them.
It is important that you make a will for the following reasons:
- To prevent your estate from going to the provincial government
- To make sure the people you want to leave specific items actually receive them
- To avoid leaving your relatives with costly issues after your death
- To allow you to choose people to act as adoptive parents or guardians, if you have young children
- COVID-19 has brought with it a unique set of challenges when it comes to the preparation and signing of wills and Powers of Attorney
As of April 7, wills can be witnessed by video conference. Previously, two witnesses had to be physically in the presence of the testator (the person making the will) when a typed will is signed. The emergency order from the government of Ontario now confirms that the “presence” may be by audio-visual communication technology.
Please note that at least one of the two witnesses must be a licensee of the Law Society of Ontario (a lawyer or a paralegal) (the “Licensee”). This will likely require a different affidavit of execution than pre-COVID-19. We recommend two separate affidavits of execution, one for the Licensee and one for the second witness.
The new emergency order now confirms that Wills and Powers of Attorney can now also be witnessed in counterpart (than means signed at different times). By using video conferencing and counterpart, wills and powers of attorney can be fully executed remotely, giving immediate validity to the documents.
These new processes allow for lawyers and clients to adapt in these unprecedented times but increase work for everyone. All instructions need to be in writing and signed off. Clients need to review their will and ask questions on the phone or virtually. Finally, signing using audio video technology requires the lawyer to keep detailed notes, likely thorough the use of a checklist, or record the meeting. Whether signing one copy of the will via video conference, or using counterparts, it’s important that both the witnesses actually see the testator, sign the will, and that the testator actually see both witnesses subscribe the will. This may require up to two additional video conference calls with the testator to ensure compliance and validity.
As you can see, the entire process may not exactly be easy, but it’s certainly doable.