Executing Wills and Powers of Attorney during the COVID-19 Emergency
The COVID-19 emergency requires us to maintain social distancing, but this has made it difficult to execute wills or power of attorney documents. Normally, you must sign these respective documents in the presence of at least two attesting witnesses present at the same time. Often these witnesses cannot be members of your household. Clearly, the requirements for due execution pose problems during the COVID-19 emergency. Fortunately, during the COVID-19 emergency, you can execute your will or power of attorney documents without risking your health or the health of others. Thanks to temporary changes to the law, you may now execute these documents remotely using “audio-visual communication technology,” such as Zoom.
Due Execution of Wills
Under Ontario’s Succession Law Reform Act,[i] your will is invalid unless it is duly executed. For it to be duly executed (subject to two exceptions)[ii] you, as the testator (or some other person that you direct in your presence), must sign at the end of the will, acknowledge the signature in the presence of at least two attesting witnesses present at the same time, and those attesting witnesses must also sign the will in your presence.[iii] An attesting witnesses should not be a beneficiary or a spouse of a beneficiary under the will because any bequest to that witness or to his or her spouse, or a person claiming under either of them, is void.[iv] The will itself would still otherwise be valid.
Due Execution of Powers of Attorney
Like a will, you must execute either your continuing power of attorney or your power of attorney for care in the presence of two witnesses, each of whom must sign as witnesses in your presence.[v] There are also limits to who can be a witness. The following persons cannot be witnesses: your spouse or partner; a person who is less than eighteen years old; the attorney or the attorney’s spouse or partner; a person whose property is under guardianship or who has a guardian of the person; and your child or a person whom you have demonstrated a settled intention to treat as your child.[vi]
COVID-19 and Due Execution
As discussed above, you must sign your will or power of attorney documents in the presence of two or more witnesses, and those witnesses will likely come from outside of your household. This poses problems during the COVID-19 emergency,[vii] during which you are expected to maintain social distancing.
The Ontario government has addressed this problem by now allowing you and your witnesses to execute these documents remotely.[viii] During the rest of the emergency, the requirement that you or your witnesses be present or in each other’s presence for the making or acknowledgment of your signature on the will or for the subscribing of a will may be satisfied by means of audio-visual communication technology if at the time of the signing at least one of the witnesses is either a paralegal or a lawyer.[ix] Similarly, for the duration of the emergency, the requirement that witnesses be present for the execution of a power of attorney may be satisfied by means of audio-visual communication technology if at least one of the witnesses is at the time either a paralegal or a lawyer.[x] “Audio-visual communication technology” means any electronic method of communication in which participants can see, hear, and communicate with each other in real time.[xi]
What to Do
The new requirements can be met if you, along with a member of the Law Society of Ontario and another witness, do the following:
- Make sure everyone has printed out copies of the will or continuing power of attorney or power of attorney for personal care;
- Use the same “audio-visual communication technology,” such as zoom, FaceTime, Houseparty, or Google Hangouts;
- Make sure you can see, hear, and communicate with each other in real time;
- Make sure the documents are visible;
- Sign the document as the witnesses are present;
- Have each of the witnesses sign the document; and
- Get one of the witnesses to swear a modified affidavit of execution, which verifies that he or she and the other witness were present at the time of execution of the document.
The COVID-19 emergency has been difficult for all of us, but it is now easier for you to execute wills and powers of attorney. Before undertaking this procedure, please contact us to confirm that all the requirements are being met.
[i] Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA] ss 5-6.
[ii] There are exceptions for wills of a member of forces on active service and wills made by a testator wholly by his or her own handwriting and signature (a holograph will). See: SLRA, supra note 1, s 5 and 6.
[iii] Ibid s 4 (1).
[iv] Ibid s 12 (1).
[v] Substitute Decisions Act, 1992, S.O. 1992, c. 30 ss 10 (1) and 48 (1).
[vi] Ibid s 10 (2).
[vii] The Ontario government declared an emergency because of COVID-19 on March 17, 2020 and has since extended this emergency.
[viii] O. Reg. 129/20: ORDER UNDER SUBSECTION 7.0.2 (4) OF THE ACT – SIGNATURES IN WILLS AND POWERS OF ATTORNEY.
[ix] Ibid s 1.
[x] Ibid s 2.
[xi] Ibid s 3.