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Bulletin | Covid-19

The Will-Maker’s Dilemma: Witnessing Wills in a Time of Self-Isolation

Fasken
Reading Time 8 minute read
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Wills, Trusts & Estate Litigation Bulletin

[This Bulletin reflects the developments in the law as at April 30, 2020.  New developments may have arisen by the time of publication, or thereafter.]

Introduction

The COVID-19 pandemic poses a unique challenge for Canadians who wish to make Wills. Generally, will-makers must sign their Wills in the physical presence of two witnesses who are not beneficiaries or executors under the Will or these individuals' spouses. However, following these requirements may be difficult or impractical if will-makers must self-isolate or physically distance themselves from individuals outside their own households.

As at the date of this writing, at least two provinces (Ontario and Québec) have taken some steps to allow individuals to witness a Will through videoconferencing technology. Other provinces (namely Alberta and British Columbia) currently do not allow Wills to be executed and witnessed virtually. In this Bulletin, we summarize the current Will execution requirements in Ontario, Québec, British Columbia, and Alberta. We conclude that, while these requirements continue to vary across Canada, it is possible to make a valid Will in these provinces in spite of the challenges posed by the current environment. Even in unprecedented times, the old adage still rings true: "where there is a Will, there is a way".

Ontario

For a Will to be valid in Ontario, the Will must be in writing and signed by the will-maker in the presence of two witnesses. The beneficiaries named in the Will – or their spouses – and the named executors should not act as witnesses to the Will. Witnesses are not required to read the contents of the Will.

To help will-makers in Ontario who are in self-isolation, Ontario changed the execution requirements for Wills on April 7, 2020. Ontario Regulation 129/20 (the "Regulation") to the Emergency Management and Civil Protection Act sets out that Wills in Ontario may now be witnessed through videoconferencing or similar methods and may be signed and witnessed in counterparts.

Under the Regulation, the requirement that will-makers and witnesses sign the Will in one another's presence can now be satisfied if these parties use "audio-visual communication technology". "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". These methods would include popular videoconferencing applications such as Webex, Zoom, Google Duo, GoToMeeting, Facetime or Skype. If audio-visual communication technology is used, the Regulations require that at least one of the witnesses be a "licensee" under the Law Society Act – that is, a lawyer or a paralegal licensed to practise in Ontario.

The Regulation also allows the will-maker and witnesses to sign the Will in counterparts if audio-visual communication technology is used. The will-maker and the two witnesses must each have "complete, identical, copies" of the Will, which, together, shall form the entire Will. The Regulation provides that copies of a Will "are identical even if there are minor, non-substantive differences in format or layout between the copies". Without additional guidance or specific examples in the Regulation, prudent individuals should strive to ensure that their copies of the Will are identical or look as similar as possible (for example, by using and circulating a PDF copy of the Will to avoid inadvertent pagination and formatting errors). Prudent will-makers should also be aware of the confidentiality and privacy concerns that could arise if complete copies of their Will are in the possession of their witnesses.

The Regulation is a welcome development in Ontario in a time of unprecedented disruption. However, some things remain unchanged. For example, the Electronic Commerce Act, 2000 continues to prohibit the use of electronic signatures (such as DocuSign) on Wills in Ontario. Also, as with any new piece of legislation, the Regulation invites questions. For more details about the Regulation, please see our bulletin, "First Video Witnessing, and Now Counterparts: Ten Frequently Asked Questions Surrounding Ontario’s Emergency Changes to Will and Power of Attorney Executions".

For advice on how to make a Will in Ontario in light of COVID-19, please consult lawyers Howard Carr, Corina Weigl, Maureen Berry, Tamar Silverbrook, and Demetre Vasilounis, in Fasken's Toronto office.

Québec

Québec recognizes three kinds of Wills: (1) holograph Wills, (2) notarial Wills, and (3) Wills made in the presence of witnesses. 

Holograph Wills are Wills that a will-maker writes in their own handwriting and signs without any witnesses. The rules governing holograph Wills in Québec remain unchanged. A lawyer can help draw the Will; however, as long as the will-maker copies the Will in their own handwriting and signs it without witnesses, the Will will be valid. After the will-maker dies, a holograph will must be probated by the Superior Court or by a notary, who ultimately determines the Will's validity.

Notarial wills are wills that a notary prepares and that the Will-maker signs in the presence of the notary and another witness. After the Will-maker dies, a notarial Will does not need to be probated by the Superior Court or by a notary. As of April 1, 2020, notarial Wills can be signed remotely, based on Order 2020-010 of the Minister of Health and Social Services and the approval of the Chamber of Notaries. Specifically, Order 2010-010 authorizes will-makers to sign a notarial will in the presence of the notary and a witness, using "technological means", so long as the parties see and hear each other, see the notarial act, and affix their signatures, among other requirements. A notary using technological means must also ensure the integrity and confidentiality of the documents shared and the process used. The Order remains in place as long as the public emergency declaration continues. 

A will-maker in Québec can also make a Will by declaring a document to be the will-maker's Will in the presence of two witnesses and then signing the Will in their presence. To be valid, the witnesses must be over the age of 18 and cannot be a beneficiary under the Will or the same individual who prepared the Will. The witnesses are not required to read the Will. After the will-maker dies, a Will made in the presence of witnesses must be probated by the Superior Court or by a notary.

To date, the Province of Québec has not introduced any formal changes to the execution requirements for Wills made in the presence of witnesses in light of the COVID-19 pandemic. However, on April 24, 2020, the Barreau du Québec (Québec's law society) indicated that Wills made before witnesses could potentially be signed remotely, subject to a warning that such Wills might not later be declared valid by notaries or the courts[1]. Among other advice, the Barreau recommended that lawyers inform will-makers about the risk of virtual execution, obtain the will-maker's consent to proceed, and ensure that the process and the technology being used comply with the legal formalities. Until changes are formally introduced, will-makers who wish to sign a Will in the presence of witnesses remotely should retain the services of a lawyer, who can best advise on how to sign the Will in such a way as to maximize the chance that the Will will be recognized later.

For advice on how to make a Will in Québec in light of COVID-19, please consult lawyers Antoine Aylwin and Louis Thomas Bélanger in Fasken's Montréal office.

British Columbia

For a Will to be valid in British Columbia, the Will must be in writing and signed by the will-maker and two witnesses. The two witnesses must both be physically present and sign the Will in front of the will-maker. The witnesses are not required to read the Will.

The two witnesses must be age 19 or older. Generally, the executor and beneficiaries named in the Will – or their spouses – should not act as witnesses to the Will.

To date, the Province of British Columbia has not changed the Will execution requirements in light of the COVID-19 pandemic. Unlike Ontario and Québec, British Columbia does not expressly allow persons to witness a Will virtually – for example, through videoconferencing. 

It is possible for British Columbians to witness a Will while keeping a safe distance from one another and from the will-maker (for example, by being separated by a car window or the glass of a building). However, where having witnesses physically present would be unsafe or unwise, will-makers should consult a lawyer. British Columbia's Wills, Estates and Succession Act gives the courts the ability to declare a Will to be valid even if the Will does meet all the formal requirements, so long as the Will represents the final and fixed testamentary intentions of the will-maker. Relying on the rectification powers of the BC courts is not recommended; however, in the absence of legislative changes, a lawyer is best positioned to advise will-makers on what steps, Will modifications, and supporting documents may be appropriate and necessary, in order to have BC courts use its powers to declare an unwitnessed or virtually witnessed Will to be valid.

For advice on how to make a Will in British Columbia in light of COVID-19, please consult lawyers Annie Chen, Hiva Parandian, and Stephen Hsia in Fasken's Vancouver office.

Alberta

For a Will to be valid in Alberta, the Will must be in writing and signed by the Will-maker and two witnesses. The witnesses must sign the Will in the will-maker's presence. It is not required for the witnesses to read the Will.

The two witnesses must be age 18 or older. They cannot be a beneficiary under the Will, nor can they be married to or an adult interdependent partner of a person who is a beneficiary under the Will. The executor named in the Will can be a witness as long as he or she is not also a beneficiary.

To date, the formal requirements required to validly execute a Will in Alberta have not been changed to allow for the virtual witnessing of Wills. As such, Albertans are advised to follow both the formal Will execution requirements and the necessary social distancing measures wherever possible. 

If it is impractical or unsafe for will-makers and witnesses to be physically present, then will-makers in Alberta should consult a lawyer. As is the case with British Columbia, Alberta's succession law allows courts to declare a Will to be valid even though the formal execution requirements are not met. Albertans in self-isolation could potentially find relief through such rectification powers, although reliance on this approach is certainly not recommended. Handwritten wills are valid in Alberta provided they are wholly within the will-maker's handwriting and signed at the bottom. No witnesses or other formalities are required for a handwritten Will, so if the will-maker is ill and in isolation a Will can be prepared by a lawyer but then copied by the will-maker in their own handwriting, and signed without witnesses.

For advice on how to make a Will in Alberta in light of COVID-19, please consult lawyer Alex Kotkas in Fasken's Calgary office.



[1] Covid-19: Pratique professionnelle en droit civil et familial (PDF)

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