On April 7, 2020, Ontario released an emergency Order in Council made under s. 7.1. of the Emergency Management and Civil Protection Act, allowing the virtual signing of wills and powers of attorney. What does this Order mean for our clients?
- The virtual signing is allowed temporarily only, namely “for the duration of the emergency”. Once the declared emergency ends, virtual signing is no longer possible.
- The order is not retroactive which means any will previously signed by virtual conference is not valid and must be signed again.
- One of the two witnesses must be a licensee of the Law Society of Ontario which includes lawyers and certain paralegals.
- Electronic signatures are not allowed. The order still requires wet signatures.
- The Will-maker and 2 witnesses must all be using audio-video technology at the same time; and able to see and hear one another when the will or power of attorney is signed.
- The lawyer must still address issues of testamentary capacity and undue influence.
- All other legal requirements must still be complied with.
While the above may sound straightforward, the process of executing the will and powers of attorney becomes somewhat cumbersome. As mentioned above, the Order still requires wet signature and compliance with all other requirements. When we meet clients in person to sign their wills and powers of attorney, the client and the two witnesses sit in the same room and watch each other initialing and signing the documents. In our view, that means that after the client initialed and signed their will and powers of attorney during the video conference call, the documents have to be sent first to the non-lawyer witness. A second video conference will be set up where the client and the lawyer witness watch the first witness initialing and signing the documents. The first witness will then send the documents to the lawyer witness and a third video conference will be set up where the client and the non-lawyer witness watch the lawyer witness initialing and signing the documents.
The lawyer will then prepare Affidavits of Execution for each witness. Fortunately, the Law Society of Ontario temporarily allows the remote signing of Affidavits.
This Order was urgently needed in this time of crisis. It allows the execution of wills and powers of attorney without endangering anybody’s health. It will interesting to see if these temporary changes will lead to permanent changes of the Succession Law Reform Act and Substitute Decisions Act.