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Bulletin | Covid-19

First Video Witnessing, and Now Counterparts: Ten Frequently Asked Questions Surrounding Ontario’s Emergency Changes to Will and Power of Attorney Executions

Fasken
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Private Client Services Bulletin

In an effort to assist residents who are self-isolating as a result of the COVID-19 pandemic, the Ontario provincial government has made several announcements changing the execution requirements for wills and powers of attorney. On April 7, 2020, it announced that it is allowing wills and powers of attorney to be witnessed via video conferencing or similar technological means, and effected this change through Ontario Regulation 129/20 (the "Regulation") to the Emergency Management and Civil Protection Act.

Subsequently, further to feedback from the legal profession, on April 22, 2020, the Ontario provincial government announced that in addition to the new video witnessing capabilities, wills and powers of attorney can now be signed or subscribed, as the case may be, via "counterparts" (or in other words, identical copies of the same document). It has since amended the Regulation to reflect this new change.

This bulletin will provide a brief overview of the parameters, issues and implications surrounding the Regulation.

1. What are the Changes to the Existing Witnessing Requirements?

The Regulation modifies the requirements of the Succession Law Reform Act (the "SLRA") and the Substitute Decisions Act, 1992 (the "SDA") for the witnessing of wills and powers of attorney, respectively. Up until the Regulation, those statutes had required any person signing a will or power of attorney, as the case may be, to do so "in the presence of" two witnesses. This has traditionally been interpreted as meaning "in the physical presence of", or, in other words, without the assistance of any sort of technology.

The Regulation changes that interpretation and states that the requirement can now be satisfied by means of "audio-visual communication technology", provided that at least one of the witnesses is a "licensee" under the Law Society Act (i.e. a lawyer or paralegal). "Audio-visual communication technology" means "any electronic method of communication in which participants are able to see, hear and communicate with each other in real time". This would include Webex, Zoom, GoogleDuo, GoToMeeting, Facetime or Skype.

2.  What are the Changes to the Existing Signing Requirements?

The Regulation also brings in a new method of signing never before implemented in the SLRA or the SDA: the permitting of "counterparts". Essentially, for wills and powers of attorney, the signing (or additionally, for witnesses under the SLRA, subscribing) requirements, as the case may be, of either statute may be satisfied if both the signing party and the two witnesses have "complete, identical, copies" of the will and/or powers of attorney "in counterpart". The Regulation is clear that each of these "complete, identical copies" shall together make up the whole will or power of attorney. There are currently no further details on what this would mean from a practical perspective (i.e. if there are any considerations for filing such a will or power of attorney with a court). Note that this can only be done if the will and/or powers of attorney are being executed through the use of "audio-visual communication technology".

A significant detail is that the Regulation states that copies of a will and/or power of attorney "are identical even if there are minor, non-substantive differences in format or layout between the copies". This appears to be an important addition to the Regulation for the purposes of assisting people during the pandemic, as even if the parties are using the same document file, their separate copies of the will and/or powers of attorney may have aesthetic differences depending on the type of software or hardware that they are using to print the documents.

That being said, there is no specific guidance on what "minor, non-substantive differences in format or layout" are, and what differences might go beyond that threshold. Generally speaking, people looking to take advantage of this aspect of the Regulation should strive to ensure that such copies look as similar as possible.

3. Can Wills and Powers of Attorney Now be Signed Electronically?

Although the signing of wills and powers of attorney by electronic means (such as DocuSign) would be a welcome addition to the Regulation, it is important to note that the Regulation does not appear to allow for such electronic signatures. The Regulation does not, for example, address subsection 31(1) of the Electronic Commerce Act, 2000, which states that its electronic signature capabilities do not apply to wills or powers of attorney. The fact that the Regulation has actually been amended to now allow for counterparts also further suggests that the Ontario provincial government would have specified if it intended to permit such electronic signatures.

4. How Would a Will and/or Power of Attorney Execution Utilize the Regulation?

Now that the dust has somewhat settled on the interpretation of the Regulation, it appears that the process for executing wills and/or powers of attorney by taking full advantage of the new abilities that the Regulation provides would be as follows:

the lawyer or paralegal would prepare the will and/or powers of attorney (hereinafter collectively referred to as the "documents") as they normally would, but would edit the "attestation clause" of each such document to make reference to the unique circumstances of the video witnessing and the signing and subscribing, as the case may be, in counterparts;    

 the lawyer or paralegal would review the documents with the client in the customary manner, albeit likely via video conference in light of the current pandemic;

the lawyer or paralegal would act as a witness for the execution of the documents, and would ensure that a second witness is able to join them and the client;    

 the client, the lawyer or paralegal and the second witness would each print out their own copies of the documents;

 the client, the lawyer or paralegal and the second witness would engage in a group video conference, with the each party clearly identifying themselves to the others;

 each party would use the video conference software to demonstrate that they are signing their own copy of the documents, with the client signing first, and the lawyer or paralegal and second witness signing subsequent to the client; and

 after the parties sign all of the documents, the lawyer or paralegal would then determine how to collect, combine and store the documents and make arrangements accordingly.

5. Are There Any Other Ways to Make this Process Easier?

As the signing parties would be in separate locations and may need access to a printer to print the documents, there may be some logistical challenges with using the above method. One additional solution is that it is possible for two of the parties to be in the same room at the same time. For example, the lawyer or paralegal's family member, whom they live with, may agree to act as a second witness, or perhaps the client lives with a roommate who is otherwise not involved in the client's personal affairs. This can reduce the number of copies of documents necessary, as the Regulation does not set any minimum or maximum number of "counterparts".

Of course, in utilizing a method like this, confidentiality concerns surrounding the contents of the documents may have an impact on who to select as the witnesses, and the lawyer or paralegal must effectively address such confidentiality concerns. In many cases where a lawyer or paralegal is acting for a client with respect to a will and/or powers of attorney, both that lawyer or paralegal and another staff member of their firm will act as witnesses, which minimizes confidentiality concerns due to the fact that the firm has a duty of confidentiality to the client. When other types of third parties are involved, the lawyer or paralegal will need to ensure that they receive and document the appropriate confidentiality waivers from clients. That being said, it is essential to remember that the SLRA and SDA also preclude certain individuals from acting as witnesses.

One other potential solution is the principle of amanuensis, or the "signing on one's behalf". Paragraph 4(1)(a) of the SLRA states that a will is valid if it is signed by the testator "or by some other person in his or her presence and by his or her direction". There does not appear to be any statutory or jurisprudential precedent that forbids the "other person" from being one of the witnesses. In reading this provision and the Regulation together, it is possible that one of the two witnesses can sign the will as long as the client directs them to do so and that they do so in the client's presence. In theory, there would still only need to be one copy of the will (if the two witnesses live together and are signing the same copy of the will).

It is critical to note that the above application of amanuensis is based on theory and has not actually been tested in court. There is nothing that appears to forbid it, but at the same time there is also nothing that explicitly endorses it. A further problem is that the SDA does not contain an amanuensis provision with respect to powers of attorney; thus, powers of attorney cannot take advantage of amanuensis.

6. Can this Still be Done Using Multiple Video Conferences?

Subsequent to the April 7 establishment of the Regulation, but prior to its April 22 amendment, members of the legal profession had confirmed that they had executed wills and powers of attorney by using multiple video conference. For example, the client would sign the documents via one video conference involving the two witnesses, then mail or in some other way deliver it to the lawyer or paralegal to be signed and witnessed via a second video conference. Depending on the circumstances of the second witness, there may also had to have been a third video conference.

There were numerous problems with this process: if the video conferences took place on different days, for example, there was no certainty as to what the actual date of the documents would be. There was also the potential for disaster if something happened to one of the parties (specifically the client) between video conferences, as a court would likely not consider the documents to be validly executed if they do not have the signatures of all three parties. It seems that these problems are what led to the April 22 amendment of the Regulation.

The addition of "counterparts" has now made the use of multiple video conferences far less practical. As such, it is not recommended to use multiple video conferences unless absolutely necessary. If possible, the lawyer or paralegal should try to mail or deliver a copy of the documents to the client before execution so only one video conference is necessary.

7. Do the Witnesses Still Need to Sign Affidavits of Execution?

Just as with any will execution, the witnesses should each sign an Affidavit of Execution that has been drafted to describe the unique circumstances of the video will witnessing. Note that the Ontario Superior Court of Justice has not yet released a standard form for this type of Affidavit of Execution. The lawyer or paralegal who acted as witness should not be the commissioner of either affidavit. That being said, note that, as a result of the pandemic, affidavits may now be virtually commissioned.

8. What are the Implications of the Regulation for Clients?

The Regulation provides some much-needed flexibility with respect to the witnessing and signing of the documents, but at the same time it produces certain logistical challenges beyond the ones already outlined above. For example, people who may not have access to or familiarity with using audio-visual communication technology will need assistance in order to do so. Some people may also not have the capacity to print documents in their own home, specifically if a client is printing multiple copies of certain documents and thus could be printing in excess of a hundred pages. If non-witnesses are required to help such people access and use such technology, this could raise confidentiality concerns in addition to those outlined above. Furthermore, these rules may not assist in all cases of self-isolation. For example, the requirement that one of the witnesses be a lawyer or paralegal means that individuals cannot conduct their own executions pursuant to the Regulation with their neighbours or friends acting as both witnesses if neither of such witnesses are lawyers or paralegals.

Conversely, these changes also have an important impact for COVID-19 patients who are hospitalized but want to revise their estate planning documents. As several hospitals are restricting visitor access and have policies against hospital staff acting as witnesses, issues have arisen regarding how such patients practically could execute these documents. The new rules will assist hospital patients, including those admitted unexpectedly, with the completion of important documents. This may be especially significant in the context of powers of attorney for personal care, whereby a patient can appoint an individual(s) of their choice to make personal care decisions in the event that they are unable to do so.  For more on the importance of powers of attorney for personal care, please see our earlier bulletin on COVID-19 titled "Pandemics, Policy, Probate, Powers of Attorney and Private Client Services: We're Here to Help".

9. What are the Implications for Lawyers?

Lawyers and paralegals looking to utilize the Regulation to conduct will and/or power of attorney executions will need to take extra care in several areas of client and practice management beyond just their understanding of how to use the technology. They will have to ensure the proper verification their client's identity prior to any video conference. They will also have to pay particular attention to any potential capacity or undue influence concerns, as these aspects are simply more difficult for them to assess if they are not in the same room as the client. Furthermore, as indicated above, depending on the witnesses and/or other parties involved, the lawyer or paralegal will need to ensure that they address all confidentiality considerations and concerns.

With respect to the video conference itself, the lawyer or paralegal may wish to document the video conference, including what time the conference occurred and what the parties said at the conference. In this regard, it may be helpful to record each video conference (with the consent of each party, of course). Lastly, out of an abundance of caution, it may also be desirable to sign each page of the documents, and to subsequently re-execute them in each other's physical presence without the use of counterparts when it is safe to do so.

10. How Long Will these new Rules be in Effect?

The new changes are in effect as of April 23, 2020. They will apply, according to the Regulation, "for the duration of the emergency". While it is unclear when the pandemic, and thus the state of emergency, will end, what is clear is that lawyers now have some additional options available to assist their clients with the execution of wills and powers of attorney. Once the Ontario provincial government declares that its current state of emergency has concluded, video witnessing and the use of counterparts will thus no longer be allowed.

If you are concerned about how COVID-19 may impact your personal affairs, please feel free to reach out to a member of our Private Client Services team.

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